The announcement of the cert grant in City of Ontario v. Quon means that the Supreme Court will revisit for the first time the splintered decision in O’Connor v. Ortega, 480 U.S. 709 (1987), that created the modern framework of public employee privacy rights. That raises the possibility that the Court might change the basic legal standard that lower courts have applied since O’Connor, shaking up the rules in this area that have long been considered settled. I wanted to blog a bit on what that means and why it matters.
Let’s start with private-sector employee rights. When a criminal investigation arises in the private workplace setting, there are three basic players: the Employee, the Boss, and the Policeman. The Boss is free to search the Employee’s space because the Boss is a private actor who is not regulated by the Fourth Amendment. On the other hand, the Policeman can’t enter the workplace without a warrant or the third-party consent of the Boss. Under the Fourth Amendment, we say that the Employee has a reasonable expectation of privacy in the workplace — at least the workplace not exposed to the public, such as the open areas of a store. At the same time, the Boss has very broad third-party consent rights to let the Policeman come in and search.
Now consider what changes in the setting of government employment. The Boss and the Policeman are now on the same team. They are both “the Government.” And the precise lines between the Boss and the Policeman may be hard to draw. If you go up the chain of government employment, you quickly get to the Boss who has both work-related control of the office and also control of criminal investigators or security officers who have the power to investigate workplace crimes. In effect you now have two players instead of three: the Employee and the Boss-With-A-Badge. So what should the rules be? How should the Fourth Amendment apply?
In O’Connor v. Ortega, the Court split three ways on the issue. Four Justices created a new sui generis approach to applying the reasonable expectation of privacy test in the public workplace setting, combined with the “special needs” exception allowing reasonable warrantless workplace searches. See Plurality Opinion of Justice O’Connor joined by Rehnquist, White, & Powell. Under the sui generis approach, Fourth Amendment rights are more modest in the government workplace than elsewhere: Employees lose their rights if they share their space with other employees or a workplace policy says they have no privacy rights. One Justice rejected this somewhat watered-down approach to privacy and applied the traditional private workplace approach to the reasonable expectation of privacy test — but then agreed that the “special needs” exception applied. See Concurrence in the Judgment of Justice Scalia. Finally, four Justices offered a somewhat jumbled view as to which approach to the REP test they followed but then rejected the “special needs” exception. See Dissenting Opinion of Justice Blackmun joined by Brennan, Marshall, & Stevens.
Lower courts trying to make sense of O’Connor have treated Justice O’Connor’s plurality opinion as the binding standard — and in particular the sui generis “reasonable expectation of privacy” standard, on which the plurality and concurrence disagreed. Exactly how you get there is sort of tricky, though. It’s somewhat hard to subject the O’Connor opinions to a Marks analysis. If A needs to win both points to beat B, and both the plurality and concurring opinions say A loses because while A beat B on point 1, B beat A on point 2, which should be the controlling opinion under Marks: The 4-Justice plurality opinion that took a narrow view of why A beat B on the first point, or the 1-Justice concurring opinion that took a broad view of why A beat B on that first point? The question makes my head hurt. So courts have mostly just figured that four Justices is more than one and that they should follow the analysis in the concurring opinion.
But the Supreme Court won’t have to do that in Quon. And of the five Justices on the winning side in O’Connor, only the one-vote concurring Justice, Justice Scalia, remains on the Court. That raises the possibility that the Court will revisit the sui generis approach to public employee privacy introduced in O’Connor v. Ortega that has been applied in the lower courts for the last 20 years. It’s just a possibility: The Court could just take the framework as given (and as likely offered by the parties) without reopening the O’Connor question. But the divided opinions in O’Connor suggest that Quon may be important less for what it says about Fourth Amendment rights in new technologies than what it says about the future of government employee privacy rights.
Andrew says:
I’ve never considered this issue before, and my initial reaction was: why not just give public employees the same 4th Amendment protection from the boss-with-badge that private employees have from the combination of boss+policeman? That would be the most straightforward approach, just like it would also be most straightforward to apply the same protections to state workers as to federal workers. However, that approach might not work very well, because the private-sector boss can be incredibly intrusive without violating the Fourth Amendment, and that incredible intrusiveness would not be appropriate for a public-sector boss.
So, why not give public employees the same 4th Amendment protection from the boss-with-badge that private employees have from the policeman-acting-with-consent-of-boss (which is different from boss+policeman)? Have any justices, judges, litigants, or scholars advocated that sort of simple solution?
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December 14, 2009, 11:10 pmOrin Kerr says:
Andrew,
The sui generis framework basically does that through the focus on government workplace policies. You can think of the government workplace policy as equivalent to the employer’s policy about what they would do if the police came and asked for consent. In other words, the workplace policy essentially stands in the place of the employer who would be in a position to allow or forbid consent.
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December 14, 2009, 11:28 pmAndrew says:
Hmm, well then I guess that I’m happy with the sui generis framework for public employees, if it merely tracks the protections given to a private-sector employee as against a policeman-acting-with-consent-of-boss. Orin, you mentioned in 2006 that, “it’s important not to let that different framework created for the specific needs of public-sector workplaces bleed over into the private sector.” I think an orderly development of the law in this area would more closely and explicitly link the two sectors. Anyway, I haven’t delved into the specific facts of Quon, so I’ll recuse myself from commenting any more about the case.
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December 15, 2009, 12:11 amohiolawdog says:
I first read about this case in an LA Times article linked on How Appealing. The article began, “The Supreme Court said Monday it would rule for the first time on whether employees have a right to privacy when they send text messages on electronic devices supplied by their employers.” I feel like the press coverage of this case gives the general impression that this case will decide the privacy rights of private employees. To be fair, the NY Times article mentions at the start that this was a government pager.
The LA Times says, “While the 4th Amendment applies only to the government, many judges rely on the high court’s privacy rulings in deciding disputes in the private sector, legal experts say.” Does anyone have any sense of how accurate this is?
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December 15, 2009, 12:20 amSoronel Haetir says:
One other issue that I thought of here is that in many states these sorts of communications would appear to be covered under open records laws. Given my understanding that people can waive rights to obtain government employment I would certainly think state law would control over what a local supervisor verbally tells someone.
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December 15, 2009, 12:21 amSoronel Haetir says:
earch of J,
I’ve seen a couple cases where private employees using company equipment nevertheless were able to keep materials out of court on privacy grounds.
Personally I think that is nuts, your employer owns the equipment, and owns your time, anything you produce under those circumstances should belong to the employer.
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December 15, 2009, 1:09 amrxc says:
As a former government employee, I can say that everyone I know understands that government computers, and ALL the stuff in them, and ALL the stuff in the servers, is the property of the govt, and the govt has the right to look at ALL of it, at any time, for any reason. Therefore, even though the govt may be nice to you and let you use their computer to post stuff to, for example, the Volokh conspiracy, you should not write anything that you would not want to read on the front page of the Washington Post. Or that you would not want your mother to read...
This also means that you should not leave anything risque in your desk or on the walls of your cube. It is a sad statement about the state of affairs, but it is clear to me that life in a government workspace should be as sterile as possible. Leave any parts of your life that could possibly be construed as offensive by anyone, outside your workplace.
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December 15, 2009, 4:01 amJoseph Slater says:
Good post, Orin. Do you think the Supreme Court’s later decision in NTEU v. Von Raab (4th Amendment in public employee drug testing) helped to clarify what the Supreme Court thought the applicable test should be? It seems to me that it at least relied in decent part on the “reasonable expectation of privacy vs. special government needs” approach of the plurality in O’Connor. Of course, drug testing is not the same sort of thing, factually, as a search of a workplace. But then again, neither are text messages.
It also might be worth considering the other “Constitutional rights in public employment” cases, e.g., the First Amendment cases (Connick, Pickering, Garcetti), most of which rely at least in the most part on some balancing test which weighs the level of intrusion on the employee’s right against the government employer’s interest as an employer, as opposed to as the government.
In any case, I look forward to reading whatever further thoughts you have on this case.
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December 15, 2009, 8:42 amTuesday round-up | SCOTUSblog says:
[...] Blog also discusses the case’s ramifications for employee privacy at work. In a separate Volokh post, Kerr breaks down how the case may affect the protection of government workers’ privacy [...]
Kestrel says:
I work for a governmental entity and it would never occur to me that anything I texted on a government-owned device would be anything other than a public record available to anyone and everyone who asked to see it.
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December 15, 2009, 1:46 pmAndrew says:
Just thought I’d mention that the following news may be peripherally relevant:
“22 million Bush e-mail messages recovered”.
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December 15, 2009, 2:47 pm