In a long opinion, the Central District of California held that public employees had a reasonable expectation of privacy in their city issued pagers because they were told that they could be used for personal messages. In a sting, a dispatcher paged and text messaged her boyfriend who was a member of the Hell’s Angels that he was being followed by police. After that, the city collected the pagers to audit their contents. (The court also discussed at length application of the Stored Communications Act.) Quon v. Arch Wireless Operating Co., 445 F. Supp. 2d 1116 (C.D. Cal. August 15, 2006):<\/p>\n
Even if a public employee has a reasonable expectation of privacy in the area or item searched by his or her governmental employer, the inquiry does not end there. The Court must still assess the reasonableness of the search conducted by the governmental employer “[P]ublic employer intrusions on the constitutionally protected privacy interests of government employees for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances.” Id.<\/em> at 725-26. Evaluation of the reasonableness of such an intrusion is gauged by looking to “the inception and the scope of the intrusion.” Id.<\/em> at 726. “A search of an employee’s office by a supervisor will be justified at its inception when there are reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-related misconduct, or that the search is necessary for a noninvestigatory work-related purpose such as to retrieve a needed file.” Id.<\/em> A search is considered reasonable in its scope when “the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the nature of the misconduct.” Id.<\/em><\/p>\n
. . .<\/p>\n
(a) Reasonable Expectation of Privacy<\/p>\n
A public employee’s expectation of privacy is judged against the “operational realities of the workplace” in which the employee works. Ortega,<\/em> 480 U.S. at 715. The Court would agree with defendants’ position that Quon would have no such reasonable expectation of privacy if all that was before it was the fact that Quon had been informed in writing and in person that the City considered the use of the pagers to fall within its e-mail policy, and that the City would monitor the use of its pagers, including auditing what messages were sent and received by them at any time. All of this would have put any employee on fair notice that the communications that were transmitted over the pager were, in essence, open to the public for view. See Ortega,<\/em> 480 U.S. at 719 (noting that expectation of privacy not reasonable where employer has a “regulation or policy discouraging employees . . . from storing personal papers and effects in their desk or file cabinets”); Schowengerdt v. General Dynamics Corp.,<\/em> 823 F.2d 1328, 1334, 1335 (9th Cir. 1987)(agreeing that “public employees’ expectations of privacy may be reduced by virtue of actual office practices and procedures” such as “notice from his employer that searches of the type to which he was subjected might occur from time to time for work-related purposes”).<\/p>\n
Thus, for instance, in Bohach v. City of Reno,<\/em> 982 F. Supp. 1232, 1234-35 (D. Nev. 1996), the district court held that a department memorandum informing employees that messages sent on city-issued pagers would be logged on the department’s network and that certain types of messages were banned in conjunction with the fact that such recording of messages is “part of the ‘ordinary course of business’ for police departments” diminished any expectation of privacy the employee had in what he sent or received on his pager. Similarly, in United States v. Ziegler,<\/em> — F.3d –, 2006 WL 2255688 (9th Cir. Aug. 8, 2006), the Ninth Circuit held that a company’s ownership of the employee’s workplace computer, the regular monitoring of the use of the employees’ workplace computers, the issuance of a company policy announcing that such monitoring would take place, and the dissemination to its employees of a prohibition from using the computer for private use defeated any objective expectation of privacy those employees may have had in their workplace computers. Id.<\/em> at *6.<\/p>\n
This “operational reality,” however, was fundamentally transformed by Lieutenant Duke’s conscious decision not to enforce this policy. Apparently not wanting to devote resources to reviewing the contents of text messages sent or received from pagers that exceeded the monthly character limit, Lieutenant Duke made it clear to the staff, and to Quon in particular, that he would not audit their pagers so long as they agreed to pay for any overages. Given that Lieutenant Duke was the one in charge of administering the use of the city-owned pagers, his statements carry a great deal of weight. Indeed, before the events that transpired in this case the department did not audit any employee’s use of the pager for the eight months the pagers had been in use. This was true even when overages were involved. Lieutenant Duke in effect turned a blind eye to whatever purpose an employee used the pager, thereby vitiating the department’s policy of any force or substance. By doing so, Lieutenant Duke effectively provided employees a reasonable basis to expect privacy in the contents of the text messages they received or sent over their pagers; the only qualifier to guaranteeing that the messages remain private was that they pay for any overages. See United States v. Slanina,<\/em> 283 F.3d 670, 677 (5th Cir. 2002)(“given the absence of a city policy placing Slanina on notice that his computer usage would be monitored and the lack of any indication that other employees had routine access to his computer, we hold that Slanina’s expectation of privacy was reasonable”); Leventhal v. Knapek,<\/em> 266 F.3d 64, 74 (2d Cir. 2001)(holding employee had reasonable expectation of privacy in “storing personal items in his office computer” where, despite employer’s policy prohibiting use of state equipment “for personal business,” employer acknowledged that “employee would not violate state policies by keeping a personal checkbook in an office drawer, even though it would take up space there”); Adams v. City of Battle Creek,<\/em> 250 F.3d 980, 984 (6th Cir. 2001)(noting no diminished expectation of privacy where “defendants . . . did not routinely monitor officer’s pagers or give notice to officers that random monitoring of their department-issued pagers was possible” and “where the policy” against “personal use” of such pagers “had not been enforced”); Cf. Ziegler,<\/em> 2006 WL 2255688, at *4 n.10 (recognizing that situation would be fundamentally different where “employer failed to implement a policy limiting personal use of or the scope of privacy in the computers, or had no general practice of routinely conducting searches of the computers”).<\/p>\n
That the pager in question was owned by the City adds nothing by itself to the analysis. A per se rule that public employees cannot have a reasonable expectation of privacy when using property owned by their employer would be at odds with the Supreme Court’s holding in Ortega. There the Supreme Court held unanimously that the employee could have a reasonable expectation of privacy in the personal items he stored in a desk that was presumably owned by his employer. Id. at 719. Expectations of privacy are not tied up by reference to property law. See Katz v. United States, <\/em>389 U.S. 347, 352 (1967); Schowengerdt, <\/em>823 F.2d at 1333 (“Fourth Amendment privacy interests do not, however, turn on property interests. . . . the [United States Supreme] Court rejected the contention that those who seek to invoke Fourth Amendment protections must have a property right in the area searched”). As the Ninth Circuit recently explained in Ziegler<\/em>: “We do not hold that company ownership of the computer is alone sufficient to defeat an expectation of privacy. . . . As always, the issue depends on what expectations may reasonably coexist with that ownership.” 2006 WL 2255688, at *6 n.11. Here, any lessened expectation of privacy in one’s pager messages due to it belonging to the City was canceled out by what the City, through Lieutenant Duke, communicated to its officers on how they could use that equipment.<\/p>\n
Similarly, defendants’ plea that the use of such equipment in the workplace is entitled to a lesser expectation of privacy given “community” or “social norms” — specifically, that “with the proliferation of various electronic communication systems “in the work place, it is extremely common for employers to monitor employee usage of these devices and systems” — loses its salience in light of the particular circumstances of this case. (Gov’t Defs’ Mot. Summ. J. at 36). Appeals to broad societal norms quickly give way once an employer, like the defendants in this case, promulgates and announces a policy to its employees detailing how much privacy to expect in using specified equipment. At that point such general norms are trumped by the particular norm that was implemented in the work place in question. See Ziegler,<\/em> 2006 WL 2255688, at *5 (“we take societal expectations as they are, not as they could or (some think) should be” (citing United States v. Silva,<\/em> 247 F.3d 1051, 1055 (9th Cir. 2001)). The Court finds that it is unreasonable to expect that an employee would assume that some other unstated norm should inform their opinion on how much privacy to expect in using an employer’s equipment once that employer expressly informs his or her employees of an actual policy regarding the use of that very equipment. Here, Lieutenant Duke’s actions eroded any attempt on defendants’ part to lessen the expectation of privacy its employees had in the use of the pagers issued to them; indeed, his actions could be said to have encouraged employees to use the pagers for personal matters. See Ortega,<\/em> 480 U.S. at 719 (holding employee had a reasonable expectation of privacy where there was “no evidence that the Hospital had established any reasonable regulation or policy discouraging employees . . . from storing personal papers and effects in their desks or file cabinets”).\n<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"
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