The Application of Privacy Laws



City of Ontario, California, et al. v Quon, et al. 560 U.S.___(2010)

1. What were the material facts of City of Ontario, California, et al. v Quon, et al. (Ontario v Quon)?

Petitioner Ontario (hereinafter City) acquired alphanumeric pagers able to send and receive text messages. Its contract with its service provider, Arch Wireless, provided for a monthly limit on the number of characters each pager could send or receive, and specified that usage exceeding that number would result in an additional fee. The City issued the pagers to respondent Quon and other officers in its police department (OPD), also a petitioner here. When Quon and others exceeded their monthly character limits for several months running, petitioner Scharf, OPD’s chief, sought to determine whether the existing limit was too low, i.e., whether the officers had to pay fees for sending work-related messages or, conversely, whether the overages were for personal messages. After Arch Wireless provided transcripts of Quon’s and another employee’s August and September 2002 text messages, it was discovered that many of Quon’s messages were not work related, and some were sexually explicit.

It it also important to note that the pager use was covered by the OPD's computer and Internet use policy, under which employees agreed that "the city reserves the right to monitor and log all network activity including e-mail and Internet use, with or without notice."

2. Briefly describe the procedural history of Ontario v Quon.

The district court: ruled that Quon and his fellow plaintiffs had a reasonable expectation of privacy. It ordered a jury trial to determine whether the purpose of the audit was, as the department maintained, to find out whether it needed higher character limits or, as Quon claimed, to expose the personal nature of the texts.

Court of Appeal: Quon et al. On appeal in 2008, a panel of two Ninth Circuit judges agreed with the district court that Quon and his co-appellees had a reasonable expectation of privacy due to the assurances from Duke.

But they reversed since they found the search unreasonable as a matter of law. The OPD could have obtained the information it sought in a number of less intrusive ways without viewing the content of the messages, such as warning Quon ahead of time or asking him to redact personal messages from an unreviewed transcript.

Hearing was then taken to Supreme Court

3. What were the legal issues presented in Ontario v Quon? In your answer, see if you are able to distinguish between substantive law and procedural law.

Did the City of Ontario, California violate the Fourth Amendment by conducting a search of their employees’ text messages sent and received on a pager supplied by the City, where there was in informal policy allowing some personal use of the pagers? (substantive law) Whether a workplace practice was created contradicting the technology policy by allowing an employee to pay for over costs (procedural law)

4. What was the ratio of the case in Ontario v Quon? Note the narrow interpretation applied by the Supreme Court.

Supreme Court placed narrow focus on the issue by only deciding whether the search was reasonable

With Justice Anthony M. Kennedy writing for the majority, the Court reasoned that even assuming that Mr. Quon had a reasonable expectation of privacy in his text messages, the city's search of them was reasonable because it was motivated by a legitimate work- related purpose and was not excessive in scope. In reaching its conclusion, the Court rejected the Ninth Circuit's "least intrusive" means approach to the issue.

5. Explain the reasoning behind the decision of the Supreme Court to reverse in part the decision of the US Court of Appeals. What approach did the Court take?

Supreme court came to the conclusion that their had been a greatly...
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