Ninth Circuit, Over Vigorous Dissent, Denies Rehearing in Text-Messaging Privacy Case
April 8, 2009
Linda Auerbach Allderdice- Los Angeles
The U.S. Ninth Circuit Court of Appeals denied a petition for rehearing en banc of its decision in Quon v. Arch Wireless, reaffirming its ruling that the constitutional rights of municipal police officers were violated when the records of their city-issued wireless pagers were surreptitiously audited by their public employer. The order denying rehearing en banc was accompanied uncharacteristically by concurring and dissenting opinions which framed a sharp dispute over the unreasonable search and right to privacy principles at issue in the original opinion.
In the original opinion, the Ninth Circuit held that the city of Ontario, California, Police Department conducted an unlawful search and seizure when auditing the text messages on officers’ pagers. Specifically, the Ninth Circuit held that the scope of the search of the text messages was unreasonable because there were less intrusive means to determine why officers had exceeded the authorized number of text messages. The court further held that the police department also violated the officers’ constitutional right of privacy.
The spirited dissent to the order denying rehearing was authored by Judge Sandra Segal Ikuta, who was joined by six other active judges. As Judge Ikuta noted, “This case is, at its core, a workplace privacy case.” The dissent argued that the original opinion undermined previous standards in which the U.S. Supreme Court had “mandated a ‘case by case’ approach to determining whether an employee has a reasonable expectation of privacy in the workplace.” That standard, the dissent noted, requires the courts to take “a practical approach to evaluating a public employer’s searches of government offices and equipment. It requires us to consider the ‘operational realities of the workplace’ when determining whether an expectation of privacy is reasonable.”
In asserting that the case should be heard en banc, the dissent claimed that the original opinion “improperly hobbles government employers from managing their workforces.” In particular, the dissent focused on the fact that the police department had a written policy establishing that the personal messages were subject to “access and disclosure” and that the “operational realities” – use of the text pagers issued to SWAT team members – underscored the employer’s interest in managing their use. To bolster its argument, the dissent also cited to the fact that the SWAT pagers were subject to the California Public Records Act, which makes most police records accessible to the public. The dissent also found that the Quon opinion improperly extended the test for unreasonable search, noting that rather than assessing whether the search “actually conducted” was “reasonably related to the objectives of the search,” the majority improperly focused on what could have been done.
The concurring opinion, authored by Judge Kim McLane Wardlaw, responded with a scathing rebuke of the dissent, observing, “No poet ever interpreted nature as freely as Judge Ikuta interprets the record on this appeal.” Judge Wardlaw dismissed the dissent, finding that it mischaracterized or overlooked entirely key factual findings. For example, Judge Wardlaw argued in actuality there was no “official” policy governing use of the pagers or text messaging. More importantly, the concurring opinion noted, the police officers had a right to rely on the “informal – but express and specific – policy and practices that did govern the use of the pagers” and that the police department’s conduct was inconsistent with such informal policies and practices. It was the failure to follow that informal policy which resulted in the violation of the right to privacy. Accordingly, the concurring opinion forcefully asserted that the original opinion did not depart from controlling Supreme Court authority. Furthermore, the record was devoid of any evidence that the requests under the Public Records Act were so “widespread or frequent” as to have undermined the reasonable expectation of privacy based on the informal policies that controlled the use of the text pagers. The concurring opinion also challenged the dissenting opinion’s claim that it had applied an incorrect standard in determining whether the search itself was unreasonable. To the contrary, Judge Wardlaw noted, the court had discussed the numerous other ways the police department could have obtained information simply to show how the search that was conducted was “excessively intrusive.”
While Quon dealt with and focused on a public employer’s duties, it is notable that the conduct was also tested under the California Constitution which applies to private employers. Therefore, the discussion in Quonof what is a reasonable expectation of privacy in the workplace, based on policies that are actually communicated, implemented and enforced, as well as the “operational realities” of the workplace, may well be applied to private employers. The tests articulated in Quon may apply, for example, to cases involving monitoring of computers and other electronic devices, and the deployment of other security-based means in order to protect the workplace and a company’s tangible and intellectual property assets.
For more information, contact:
Linda Auerbach Allderdice
213.896.2422
linda.allderdice@hklaw.com
toll free: 1.888.688.8500
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