No.

08-1332

In the Supreme Court of the United S tates

CITY OF ONTARIO, CALIFORNIA, ET AL.,

Petitioners,
v.
JEFF QUON, ET AL.,
Respondents.

On Writ Of Certiorari To The

United States Court Of Appeals
For The Ninth Circuit

BRIEF OF ELECTRONIC FRONTIER

FOUNDATION, CENTER FOR DEMOCRACY &
TECHNOLOGY, AMERICAN CIVIL LIBERTIES
UNION, AND PUBLIC CITIZEN AS AMICI
CURIAE IN SUPPORT OF RESPONDENTS

DAN M. KAHAN ANDREW J. PINCUS

SCOTT L. SHUCHART Counsel of Record
Yale Law School CHARLES ROTHFELD
Supreme Court Clinic Mayer Brown LLP
127 Wall Street 1999 K Street, NW
New Haven, CT 06511 Washington, DC 20006
(203) 432-4992 (202) 263-3000
apincus@[Link]
Counsel for Electronic Frontier Foundation and
Center for Democracy & Technology
[Additional Counsel Listed on Inside Cover]
STEVEN R. SHAPIRO GREGORY A. BECK
American Civil Liberties Public Citizen
Union Foundation 1600 20th Street, NW
125 Broad Street Washington, DC 20009
New York, NY 10004 (202) 588-7713
(212) 549-2500
Counsel for Public
Counsel for American Citizen
Civil Liberties Union
 i
TABLE OF CONTENTS

Page
TABLE OF AUTHORITIES ......................................iii
SUMMARY OF ARGUMENT..................................... 2
ARGUMENT................................................................ 5
I. THE COURT SHOULD TREAD
CAUTIOUSLY IN ADDRESSING THE
APPLICATION OF THE FOURTH
AMENDMENT TO NEW
COMMUNICATION TECHNOLOGIES. ............. 5
A. Text Messaging and Email Are Rapidly
Replacing Traditional Forms of
Communication................................................. 6
B. The Technology Used To Transmit Text
Messages And Email Creates An
Expectation Of Privacy As Reasonable
As That Associated With Older Forms of
Communication............................................... 10
C. Employers Typically Permit—And
Often Encourage—Employees To Use
Employer-Provided Equipment To
Transmit Personal Emails And Text
Messages. ........................................................ 16
D. The Court Should Not Address In This
Case The Impact of Employers’
Monitoring Policies On Fourth
Amendment Protection Against Law
Enforcement Access to Private Sector
Or Government Employees’ Electronic
Communications. ............................................ 20
II. THE SEARCH HERE VIOLATED THE
FOURTH AMENDMENT STANDARD
APPLICABLE TO SEARCHES OF
GOVERNMENT WORKPLACES. ...................... 24
 ii

TABLE OF CONTENTS—continued

Page

A. The O’Connor Plurality Opinion

Supplies The Governing Standard. ............... 25
B. The Government Employee
Respondents Had A Reasonable
Expectation Of Privacy In Their Text
Messages. ........................................................ 27
1. Lieutenant Duke’s Interpretation Of
The Department’s Policy, Together
With His Settled Practice, Supported
A Reasonable Expectation Of
Privacy. ...................................................... 28
2. The California Public Records Act
Does Not Undermine The
Employees’ Reasonable Expectation
Of Privacy. ................................................. 32
C. The Search Of The Text Messages Was
Unreasonable In Its Scope. ............................ 35
D. Because The Search Of The Officers’
Text Messages Was Unreasonable,
Petitioners Also Violated The Fourth
Amendment Rights Of The Private
Individuals Who Sent Messages To The
Officers. ........................................................... 37
CONCLUSION .......................................................... 37
 iii

TABLE OF AUTHORITIES
Page(s)

CASES
American Postal Workers Union v.
U.S. Postal Service,
871 F.2d 556 (6th Cir. 1989)................................ 26
Biby v. Board of Regents,
419 F.3d 845 (8th Cir. 2005)................................ 26
California State University v. Superior Court,
108 Cal. Rptr. 2d 870 (2001)...........................33-34
Camara v. Municipal Court,
387 U.S. 523 (1967).............................................. 25
Chandler v. Miller, 520 U.S. 305 (1997) .................. 32
City of Indianapolis v. Edmond,
531 U.S. 32 (2000)................................................ 23
Denver Publishing Co. v. Board of County
Commissioners, 121 P.3d 190 (Colo. 2005) ......... 34
Garcetti v. Ceballos, 547 U.S. 410 (2006)................... 2
Griffis v. Pinal County,
156 P.3d 418 (Ariz. 2007) .................................... 34
Guest v. Leis, 255 F.3d 325 (6th Cir. 2001).............. 16
International Federation of Professional &
Technical Engineers, Local 21, AFL-CIO v.
Superior Court, 165 P.3d 488 (Cal. 2007) ........... 34
Katz v. United States,
389 U.S. 347 (1967).......................................... 6, 36
Kyllo v. United States, 533 U.S. 27 (2001) ................. 6
Leventhal v. Knapek,
266 F.3d 64 (2d Cir. 2001) ............................. 26, 30
Mancusi v. DeForte, 392 U.S. 364 (1968) ................. 21
 iv

TABLE OF AUTHORITIES—continued

Page(s)

Marshall v. Barlow’s, Inc.,

436 U.S. 307 (1978).............................................. 25
Michigan Dep’t of State Police v. Sitz,
496 U.S. 444 (1990).............................................. 22
Narducci v. Moore,
572 F.3d 313 (7th Cir. 2009)................................ 26
New Jersey v. T.L.O., 469 U.S. 325 (1985) ............... 25
O’Connor v. Ortega, 480 U.S. 709 (1987) ......... passim
Rehberg v. Paulk, No. 09-11897,
2010 WL 816832
(11th Cir. Mar. 11, 2010) ..................................... 16
Reno v. ACLU, 521 U.S. 844 (1997)............................ 2
Rogers v. Lodge, 458 U.S. 613 (1982) ....................... 28
Rumsfeld v. Forum for Academic and
Institutional Rights, Inc.,
547 U.S. 47 (2006)................................................ 32
Smith v. Maryland, 442 U.S. 735 (1979) ................. 36
Stewart v. Evans,
351 F.3d 1239 (D.C. Cir. 2003)............................ 27
Tiberino v. Spokane County,
13 P.3d 1104 (Wash. Ct. App. 2000) ................... 34
Tiffany Fine Arts, Inc. v. United States,
469 U.S. 310 (1985).............................................. 28
United States v. Angevine,
281 F.3d 1130 (10th Cir. 2002).......................26-27
United States v. Esser,
284 Fed. Appx. 757 (11th Cir. 2008) ................... 27
United States v. Jacobsen, 466 U.S. 109 (1984)....... 11
 v

TABLE OF AUTHORITIES—continued

Page(s)

United States v. Johnson,

16 F.3d 69 (5th Cir. 1994).................................... 26
United States v. Lifshitz,
369 F.3d 173 (2d Cir. 2004) ................................. 16
United States v. Mancini,
8 F.3d 104 (1st Cir. 1993) .................................... 26
United States v. Simons,
206 F.3d 392 (4th Cir. 2000)................................ 26
United States v. Taketa,
923 F.2d 665 (9th Cir. 1991)................................ 26

STATUTES
5 U.S.C. § 552 ............................................................ 33
18 U.S.C.
§ 2510.................................................................... 12
§ 2702.................................................................... 12
§ 2703.............................................................. 13, 14
44 U.S.C. § 2201 ........................................................ 33
California Government Code
§ 6250.................................................................... 32
§ 6254.................................................................... 34

OTHER AUTHORITIES
Jay Akasie, ‘Addiction’ to BlackBerries May
Bring on Lawsuits, The Sun (N.Y.),
Sept. 7, 2006 ....................................................17-18
American Management Association, The
Latest on Workplace Monitoring and
Surveillance, Mar. 13, 2008,
[Link] ................................... 23
 vi

TABLE OF AUTHORITIES—continued

Page(s)

Associated Press, Obama Wants Company Cell

Phone Tax Repealed, MSNBC News, Jan.
31, 2010, [Link]
35169772/ns/business-personal_finance/...... 18, 19
Bender’s Payroll Tax Guide (2010)........................... 19
Stephen J. Blumberg & Julian Luke, Wireless
Substitution: Early Release of Estimates
From the National Health Interview
Survey, CDC National Center for Health
Statistics, July-December 2008,
[Link] 7
Press Release, CTIA, The Wireless Association
Announces Semi-Annual Wireless Industry
Survey Results (Oct. 7, 2009),
[Link]
prid/1870................................................................. 8
Editorial, The IRS Phones Home, Wall St. J.,
June 16, 2009 ....................................................... 17
Jennifer Stisa Granick & Kurt Opsahl,
Taking Reality Into Account,
N.Y. Times, Dec. 21, 2009,
[Link]
2009/12/21/your-boss-and-your-
blackberry/...................................................... 17, 18
Harris Interactive, Harris Poll #36, Cell Phone
Usage Continues to Increase (Apr. 4, 2008),
[Link]
ris-Interactive-Poll-Research-Cell-Phone-
[Link] ........... 7
Kim Hart, IRS Asked to Repeal Cell Phone
Tax, The Hill, Sept. 6, 2009................................. 19
 vii

TABLE OF AUTHORITIES—continued

Page(s)

Internal Revenue Service, Notice 2009-46,

Substantiating Business Use of Employer-
Provided Cell Phones (June 8, 2009),
available at [Link]
23_IRB/[Link] ................................................ 19
Internal Revenue Service, Statement of IRS
Commissioner Doug Shulman, June 16,
2009, [Link] ............... 20
Tom Kaneshige, Haiti Donations: A Turning
Point in Mobile Commerce?, CIO (Feb. 10,
2010), [Link]
538513/Haiti_Donations_A_Turning_Point
_in_Mobile_Commerce_ ......................................... 9
Timothy B. Lee, Snooping Isn’t the Answer,
N.Y. Times, Dec. 21, 2009,
[Link]
2009/12/21/your-boss-and-your-
blackberry/................................................ 18, 19, 20
Helen Leggatt, U.S. Teens Texting Ten
Times Per Hour, Bizreport, Feb. 9 2010,
[Link]
/us_teens_texting_ten_times_per_
[Link] ............................................................... 9
Amanda Lenhart, Teens and Mobile Phones
Over the Past Five Years: Pew Internet
Looks Back (Aug. 19, 2009),
[Link]
4--Teens-and-Mobile-Phones-Data-
[Link].............................................................. 7
 viii

TABLE OF AUTHORITIES—continued

Page(s)

National Federation of Independent Business,

411 Small Business Facts: Telecommunica-
tions, [Link]
[Link]?POLLID=0022...............................16-17
Osterman Research, Inc., Mobile Messaging
Market Trend, 2008-2011, Oct. 2008,
available at [Link]
markettrends2008-2011 .......................... 16, 17, 20
Pew Research Center, Internet, Broadband,
and Cell Phone Statistics,
[Link]
nternet-broadband-and-cell-phone-
[Link]......................................................... 9
Press Release, The Radicati Group, Inc., Email
Statistics Report, 2009-2013 (May 6, 2009),
available at
[Link] 10
Marguerite Reardon, Americans Text More
Than They Talk, CNET, Sept. 22, 2008,
[Link] ................................................ 8
S. Rep. No. 99-541 (1986), reprinted in 1986
U.S.C.C.A.N. 3555 ............................................... 13
John Schulze, Jr., Technology Has Created the
Perpetual Workplace, 34, For the Defense,
Oct. 2009,
[Link]
tsx3q))/articles/CommercialLitigation/FTD-
[Link] .................................................. 17
Gemma Simpson, Study: BlackBerry Users
More Productive, [Link], July 5, 2007,
[Link] 18
 ix

TABLE OF AUTHORITIES—continued

Page(s)

SMS & MMS Outlook Strong; Text Message

Revenues Reaching $223B by 2014, Qwasi
(Feb. 3, 2010),
[Link]
message-revenues-reaching-233b-by-
[Link]................................................................. 9
Teens Point the Way to Texting Trends
(averaging 2900 txt per month), Qwasi, Oct.
1, 2009, [Link]
teens-point-the-way-to-texting-trends-
[Link] ...................... 9
Press Release, United States Postal Service,
Postal Service Begins 2010 with First-
Quarter Loss (Feb. 9, 2010),
[Link]
room/2010/pr10_014.htm..................................... 10
United States Postal Service, Operating
Statistics, [Link]
cpim/ftp/ar09html/ar_2_115.htm ........................ 10
William Webb, Wireless Communications:
The Future (2007) ................................................ 18
Workplace 2.0: The Modern Electronic
Workplace and Issues Faced by Employers,
HR Roundtable (The TemPositions Group
of Companies), May 7, 2009
[Link]
R_Roundtable_May_2009.pdf.............................. 17
 INTEREST OF THE AMICI CURIAE1
This case brings before the Court important is-
sues regarding the application of the Fourth
Amendment’s protection of personal privacy in the
context of new communications technologies. Amici
consist of the following nationwide organizations
that seek to preserve individuals’ privacy rights, in-
cluding the protection afforded by the Fourth
Amendment:
The Electronic Frontier Foundation (EFF) is a
member-supported, non-profit legal foundation that
litigates to protect free speech and privacy rights in
the digital world. As part of its mission, EFF has of-
ten served as counsel or amicus in key cases address-
ing constitutional and statutory rights of privacy in
electronic communications.
The Center for Democracy & Technology (CDT) is
a non-profit public interest organization focused on
privacy and other civil liberties issues affecting the
internet and other communications networks. CDT
represents the public's interest in an open, decentral-
ized Internet and promotes the constitutional and
democratic values of free expression, privacy, and in-
dividual liberty.
The American Civil Liberties Union (ACLU) is a
nationwide, nonprofit, nonpartisan organization with
over 500,000 members dedicated to the principles of

1 Pursuant to Rule 37.6, amici affirm that no counsel for a party

authored this brief in whole or in part and that no person other

than amici or their counsel made a monetary contribution to its
preparation or submission. The parties’ letters consenting to
the filing of this brief have been filed with the Clerk.
 2

liberty and equality embodied in the Constitution

and this nation’s civil rights laws. Since its founding
in 1920, the ACLU has appeared before this Court in
numerous cases involving the interpretation of the
Fourth Amendment and, more generally, the appli-
cation of the Constitution to new technologies. See,
e.g., Reno v. ACLU, 521 U.S. 844 (1997).
Public Citizen is a national consumer-advocacy
and watchdog organization based in Washington,
D.C. Since its founding in 1971, Public Citizen has
argued as counsel and as amicus curiae for the pri-
vacy rights of consumers. Public Citizen has also
represented government employees in cases involv-
ing the intersection of the Constitution and the gov-
ernment’s authority as an employer, including Gar-
cetti v. Ceballos, 547 U.S. 410 (2006).
SUMMARY OF ARGUMENT
1. Communication in America is in the midst of a
technological revolution. Information that individu-
als formerly conveyed in oral conversations (either
face-to-face or over the telephone) or in letters or
other physical correspondence is now routinely
transmitted using text messages or emails.
This case presents the Court with one of its first
opportunities to address the application of the
Fourth Amendment to private information conveyed
via these new mediums of communications. Given
the technological complexity of the context, and the
extremely significant implications for continued pro-
tection under the Fourth Amendment of Americans’
most private communications, the Court should pro-
ceed cautiously and limit its decision to the specific
factual circumstances presented here.
 3

To begin with, the technology used to transmit

text messages and email creates an expectation of
privacy that is just as reasonable as that associated
with the more traditional modes of communication
that are being replaced. The processes of sending the
communications are similar, and the actual chances
that a message will be read by someone other than
the sender and recipient are infinitesimal in each
situation. Moreover, Congress enacted the Stored
Communications Act to reinforce the privacy of the
content of electronic written communications—a fac-
tor that plainly supports the reasonableness of users’
privacy expectations.
The factual circumstances of this case—in which
an employee used an employer-provided communica-
tions device to send electronic written communica-
tions—are not at all unique. Many employers, both
governmental and private, provide communications
devices to their employees. And they permit, and of-
ten encourage, employees to use those devices for
personal as well as business communications. That is
because the more the employee uses the device away
from the office, the more accessible the employee is
for after-hours work assignments—and the greater
the benefit to the employer. The mixed personal and
professional use of company-provided devices is an
essential tool for transacting business in the infor-
mation age.
Petitioners argue that the Police Department’s
policy applicable to employees’ internet use vitiates
any reasonable expectation of privacy on the part of
respondents. That argument is wrong on the merits.
But to the extent the Court addresses the argument,
it should make clear that its analysis applies only in
the context of government workplace searches. A
 4

private employer’s policy permitting the employer to

access messages transmitted on company-provided
devices does not affect in any way the employee’s
reasonable expectation that the messages will re-
main inaccessible to the government. And whatever
authority the government may have to monitor em-
ployee communications in its role as employer is lim-
ited to that context, and does not apply to law en-
forcement searches.
2. The legal framework for deciding this case is
provided by the plurality opinion in O’Connor v. Or-
tega, 480 U.S. 709 (1987). The threshold question is
whether both courts below correctly determined that
Officer Quon had a reasonable expectation of privacy
in the content of the text messages. Those holdings
are correct.
Both lower courts found as a fact that petitioners’
written internet use policy did not encompass text
messaging. Petitioners’ sole support for their conten-
tion that the policy did apply to text messaging is
Lieutenant Duke’s testimony that he informed mem-
bers of the Police Department that pager messages
would fall within the policy. But the very same Lieu-
tenant Duke established the informal policy and
practice that text messages would not be reviewed as
long as employees paid any overage charges—the
policy and practice that support Officer Quon’s rea-
sonable expectation of privacy. Because petitioners
themselves rely on the authoritative nature of some
of Lieutenant Duke’s statements, they cannot dis-
pute the authoritative status of the statements and
actions of the same individual relied upon by respon-
dents.
The search here did not comply with O’Connor’s
requirement that a government workplace search
 5

must be reasonably related to the goals of the search

and not “excessively intrusive.” 480 U.S. at 726. The
reason for the search was to determine whether po-
lice officers were being required to pay for work-
related messages. Several obvious alternative ap-
proaches—for example, asking officers to identify
work-related text messages in excess of the existing
monthly character allotment—would have enabled
petitioners to fulfill their purpose without intruding
on the sensitive privacy interests protected by the
Fourth Amendment.
ARGUMENT
I. THE COURT SHOULD TREAD CAU-
TIOUSLY IN ADDRESSING THE APPLICA-
TION OF THE FOURTH AMENDMENT TO
NEW COMMUNICATION TECHNOLOGIES.
Mobile communications devices—including cellu-
lar phones, pagers, and combination devices known
as smartphones—have rapidly become ubiquitous.
Unlike traditional (“landline”) telephones, these new
devices are not limited to transmitting oral conversa-
tions; they also enable users to exchange written
communications through the extremely popular me-
dium of text messages.
Increased access to the internet in homes and of-
fices, as well as through mobile devices such as the
Blackberry and iPhone, is also producing an explo-
sion in electronic written communication via email.
These new technologies are combining to displace
landline telephones, letters, and even face-to-face in-
teraction as dominant means of communication.
Although these new media are now a part of eve-
ryday life for most Americans, the courts have had
few opportunities to address the extent to which the
 6

Fourth Amendment limits governments’ ability to

access citizens’ private communications effected via
these new technologies. These questions are complex,
turning on the application of settled legal principles
in new and technologically complex contexts. Cf.
Kyllo v. United States, 533 U.S. 27, 34 (2001) (refus-
ing to “permit police technology to erode the privacy
guaranteed by the Fourth Amendment”).
This Court accordingly should proceed with cau-
tion, and take care to limit its decision here to the
specific factual situation before it. The Court’s ruling
otherwise could have unjustified and unintended, but
extremely significant, implications for the continued
protection under the Fourth Amendment of Ameri-
cans’ most private communications, which increas-
ingly are conducted using these new technologies.
Compare Katz v. United States, 389 U.S. 347, 355
(1967) (overturning prior holding in Olmstead v.
United States, 277 U.S. 438 (1928), regarding appli-
cation of Fourth Amendment to telephone conversa-
tions); id. at 362 (Harlan, J., concurring) (observing
that the Court’s prior requirement of physical pene-
tration of a premises to establish a Fourth Amend-
ment violation “is, in the present day, bad physics as
well as bad law, for reasonable expectations of pri-
vacy may be defeated by electronic as well as physi-
cal invasion”).
A. Text Messaging and Email Are Rapidly
Replacing Traditional Forms of Com-
munication.
Cell phones and similar mobile communication
devices have become omnipresent. A 2009 survey
 7

found that 85% of adults owned a mobile phone.2 Ap-

proximately nine out of ten adults use a mobile
phone and one in seven adults owns only a mobile
phone.3 Furthermore, 14.5% of American homes re-
ceived “all or almost all” calls on wireless telephones,
even if there also was a landline telephone in the
house. Stephen J. Blumberg & Julian Luke, Wireless
Substitution: Early Release of Estimates From the
National Health Interview Survey, CDC National
Center for Health Statistics, July-December 2008,
[Link] The chart below demon-
strates the extent to which wireless-only homes are
surpassing landline-only households. Ibid.

2 See Amanda Lenhart, Teens and Mobile Phones Over the Past

Five Years: Pew Internet Looks Back (Aug. 19, 2009),

[Link]
[Link].
3 See Harris Interactive, Harris Poll #36, Cell Phone Usage Con-

tinues to Increase (Apr. 4, 2008),

[Link]
[Link].
 8

Landline telephones are limited to voice commu-

nication, but mobile phones offer opportunities for
written communication and sharing of photo and
video messages. Text messaging, also known as
“SMS” (short message service) or “texting,” uses cell
phones or pagers to send and receive electronic writ-
ten messages.
Texting, along with the related services for
transmitting photos and videos between phones, has
become an extremely popular form of communica-
tion, with an average of 4.1 billion text messages
sent and received in the nation each day. See Press
Release, CTIA, The Wireless Association Announces
Semi-Annual Wireless Industry Survey Results (Oct.
7, 2009), [Link]
prid/1870.
Many Americans today use text messages to con-
vey information that formerly would have been the
subject of an oral telephone conversation. According
to a 2008 Nielson Mobile survey, U.S. mobile sub-
scribers “sent and received on average 357 text mes-
sages per month [in the second quarter of 2008],
compared with making and receiving 204 phone calls
a month * * *. The new statistic clearly indicates
that Americans have jumped onto the SMS text
bandwagon.” Marguerite Reardon, Americans Text
More Than They Talk, CNET, Sept. 22, 2008,
[Link]
Indeed, political and humanitarian campaigns
now utilize text-messaging as a preferred method for
reaching supporters. After the devastating earth-
quake in Haiti in January 2010, the American Red
Cross raised $7 million in two days from individuals
donating $10 each through text-messaged donations
over wireless networks. The “magic,” as media ana-
 9

lyst Jeff Roster termed it, was the ease of being able
to support a distant place in need through a simple
and quick text message. “People are comfortable with
text messaging,” he says. “Texting is the form of
communication for the next generation.”4
Text-message use is expected to continue to
surge. One study estimated that there were 5 trillion
SMS texts sent worldwide in 2009 and that there
will be more than 10 trillion SMS texts sent world-
wide in 2013. SMS & MMS Outlook Strong; Text
Message Revenues Reaching $223B by 2014, Qwasi
(Feb. 3, 2010), [Link]
[Link].5
The data regarding use of email is similarly
dramatic. An estimated 74% of adults use the inter-
net. Pew Research Center, Internet, Broadband, and
Cell Phone Statistics, [Link]
Reports/2010/Internet-broadband-and-cell-phone-
[Link]. The number of non-spam emails sent

4 Tom Kaneshige, Haiti Donations: A Turning Point in Mobile

Commerce?, CIO (Feb. 10, 2010), [Link]

cle/538513/Haiti_Donations_A_Turning_Point_in_Mobile_Com
merce_.
5 Text messaging is a particularly prevalent form of communi-

cation among young people. One study found that American

teenagers sent, on average, “10 texts per hour that they’re
awake and not in school. That’s an average of 3,146 per month.”
Helen Leggatt, U.S. Teens Texting Ten Times Per Hour, Bizre-
port, Feb. 9 2010, [Link]
/us_teens_texting_ten_times_per_hour.html. While the number
of calls sent and received by mobile-phone using teenagers is
remaining constant (and relatively low) the number of text
messages is sky-rocketing. See Teens Point the Way to Texting
Trends (averaging 2900 txt per month), Qwasi, Oct. 1, 2009,
[Link]
[Link].
 10

worldwide per day reached an estimated 47 billion in

2009. Press Release, The Radicati Group, Inc., Email
Statistics Report, 2009-2013, at 1 (May 6, 2009),
available at [Link]
Text messaging and email are not substituting
only for oral telephone conversations. The increase in
the use of these new technologies has been accompa-
nied by a corresponding decline in the use of tradi-
tional mail. The number of pieces of first-class mail
handled by the Postal Service has declined on an ac-
celerating basis over the past four years—the reduc-
tion was 1.8% from 2006 to 2007; 4.8% from 2007 to
2008; and 8.6% from 2008 to 2009. United States
Postal Service, Operating Statistics,
[Link]
For the first quarter of 2010, the decline in total mail
volume amounted to an additional 9.0% compared to
the first quarter of 2009. Press Release, United
States Postal Service, Postal Service Begins 2010
with First-Quarter Loss (Feb. 9, 2010),
[Link]
0/pr10_014.htm.
The data thus establish a clear shift in Ameri-
cans’ private communications from traditional me-
dia—physical mail and oral telephone conversa-
tions—to text messages and email messages.
B. The Technology Used To Transmit Text
Messages And Email Creates An Expec-
tation Of Privacy As Reasonable As That
Associated With Older Forms of Com-
munication.
Text messaging and email utilize new forms of
technology to transmit written communications from
one individual to another, but the characteristics of
 11

those technologies give rise to expectations of privacy

in the senders and recipients of such messages that
are virtually identical to, and just as reasonable as,
the privacy expectations associated with messages
transmitted via more traditional communications
media.
First, the sending of electronic written communi-
cations from one device to another—whether text
messages via phones or email messages via comput-
ers or smartphones—resembles the process for send-
ing physical letters. The sender composes a message
and transmits it to the recipient, retaining a copy for
himself. The recipient receives an electronic copy of
the message, which he may retain or (at least for
email) transform into a physical document by print-
ing out the message.
Senders and recipients of physical written com-
munications have reasonable expectations of privacy
in information contained in those documents. United
States v. Jacobsen, 466 U.S. 109, 114 (1984)
(“[l]etters and other sealed packages are in the gen-
eral class of effects in which the public at large has a
legitimate expectation of privacy”). That is true not-
withstanding the fact that letters and packages may
be opened by persons other than the recipient—
either intentionally or unintentionally—including for
legitimate reasons (e.g., because they are misdeliv-
ered or damaged in transit or because the address
becomes illegible) or for illegitimate reasons (e.g.,
malfeasance by postal employees or by neighbors or
others interfering with the proper delivery of those
messages).6

6 The same is true of oral telephone conversations, which may

be accessed by employees of communications carriers as well as

 12

The senders and recipients of electronic written

communications have a similar expectation of pri-
vacy. Although it is technically possible for the elec-
tronic written communication to be viewed by a per-
son other than the recipient—such as an employee of
one of the entities providing transmission or delivery
services—the actual chances are infinitesimal that
such an interception will occur with respect to any of
the billions of emails or text messages sent each day.
In the electronic context, the process of transmis-
sion may create copies of the message on the servers
operated by one or more providers of services ena-
bling the transmission and delivery of the electronic
written communication. And those copies are acces-
sible by the entities supplying the transmission serv-
ices. But Congress has specifically reinforced users’
reasonable expectations of privacy by strictly regu-
lating—through the use of criminal sanctions—
access to and distribution of the contents of elec-
tronic written communications.
The Stored Communications Act, 18 U.S.C.
§§ 2701 et seq., bars anyone providing an “electronic
communication service”—which is defined as “any
service which provides to users thereof the ability to
send or receive wire or electronic communications,”
id. § 2510(15)—from divulging the contents of com-
munications in electronic storage to anyone other
than the “addressee or intended recipient of such
communication,” id. § 2702(a)(1) & (b)(1), with very
limited specified exceptions. Significantly, govern-
ment entities may compel disclosure of the content of

by other persons—from family members or co-workers listening

on other extensions, to those using more surreptitious means.
 13

a communication only through a warrant, court or-

der, or subpoena. Id. § 2703(a) & (b).
Congress enacted this statute to “update and cla-
rify Federal privacy protections and standards in
light of dramatic changes in new computer and tele-
communications technologies.” S. Rep. No. 99-541, at
1 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3555.
It pointed out that
[w]hen the Framers of the Constitution acted
to guard against the arbitrary use of Gov-
ernment power to maintain surveillance over
citizens, there were limited methods of intru-
sion into the ‘houses, papers, and effects’ pro-
tected by the fourth amendment. During the
intervening 200 years, development of new
methods of communication and devices for
surveillance has expanded dramatically the
opportunity for such intrusions.
Id. at 1-2. Existing law, Congress found, was “‘hope-
lessly out of date.’ It has not kept pace with the de-
velopment of communications and computer technol-
ogy. Nor has it kept pace with changes in the struc-
ture of the telecommunications industry.” Id. at 2 (ci-
tation omitted). The Stored Communications Act fills
this gap by ensuring protection of Americans’ privacy
in the context of these new communications tech-
nologies.
Indeed, the court below relied on this statute in
holding that the company providing text messaging
services to the Department violated the Act by turn-
ing over the text message transcripts to the City.
Pet. App. 20-21. That holding—which this Court de-
clined to review—makes clear the strong support for
 14

Officer Quon’s reasonable expectation of privacy that

results from the congressional enactment.
For all of these reasons, senders and recipients of
electronic written communications have a reasonable
expectation of privacy—grounded in the nature of
the technology and in statutes enacted by Con-
gress—with respect to the contents of those mes-
sages.
Second, the sending of a written communica-
tion—whether physical or electronic—does not
eliminate the sender’s reasonable expectation of pri-
vacy in any copy of the communication that he re-
tains. To be sure, once a communication is sent, the
sender no longer exercises exclusive control over the
message’s contents: The recipient may choose volun-
tarily to disclose the copy of the letter that he re-
ceived. Or the government may compel the recipient
to disclose the delivered copy of the communication
through means that comply with the Fourth
Amendment’s reasonableness requirement (which
would apply because a recipient of a written elec-
tronic communication who did not disclose the mes-
sage’s contents would have a reasonable expectation
of privacy in those contents).
But the government cannot without a showing of
probable cause—or satisfying any other applicable
Fourth Amendment reasonableness standard—
compel an individual (or a business) to disclose re-
tained copies of sent correspondence. If sending a
communication completely vitiated the sender’s rea-
sonable expectation of privacy, then the Fourth
Amendment would not preclude the government
from demanding such documents routinely from any-
one without any particularized suspicion whatever.
 15

And it cannot be argued that a different rule

should apply with respect to the sender or recipient’s
retained copies of electronic communications because
the transmission and delivery process creates addi-
tional copies of the message—Congress in the Stored
Communications Act has tightly regulated disclosure
by persons possessing such copies in a manner that
enhances the reasonableness of the sender’s and re-
cipient’s expectations of privacy in any copies of the
email or text messages that they retain. Just as the
sender of a physical letter has a reasonable expecta-
tion of privacy in his retained copy of that letter,
senders of electronic communications have an expec-
tation of privacy in retained email and text mes-
sages.
Third, to the extent an electronic written com-
munication is not disclosed voluntarily by either the
sender or recipient, the Stored Communications Act
confers on both parties to the communication a rea-
sonable expectation of privacy with respect to copies
of the message retained by entities providing serv-
ices related to the sending, transmission, or receipt
of the message. After all, that statute’s very purpose
is to prevent (with extremely limited exceptions) the
disclosure of the contents of electronic communica-
tions in the absence of the consent of the parties to
the communication. Its effect is to give those indi-
viduals a reasonable expectation that their commu-
nication will remain private unless one of them de-
cides to reveal it.7

7 One lower court recently espoused the expansive, and in our

view erroneous, principle that the sender of an electronic writ-

ten communication can have no reasonable expectation of pri-
vacy with respect to the copy of the communication that is in
 16

C. Employers Typically Permit—And Often

Encourage—Employees To Use Em-
ployer-Provided Equipment To Trans-
mit Personal Emails And Text Messages.
Text messaging and email are not only staple
tools of personal communication, but of business
communication as well.
Nearly a quarter of the private workforce uses
employer-provided mobile devices. See Osterman Re-
search, Inc., Mobile Messaging Market Trends, 2008-
2011, Oct. 2008, available at
[Link] That fig-
ure continues to grow. By the middle of 2010, almost
40% of corporate employees are expected to use mo-
bile devices provided by their employers. See ibid.
And the use of such devices is no longer confined to
major companies. As the price of mobile devices
plummeted, the use of such devices in smaller enti-
ties has skyrocketed. Mobile devices now play a vi-
tally important role in American small businesses.
Indeed, “seventy-eight percent of small business
owners use a cell-phone for business purposes.” Nat’l

the hands of the service provider. Rehberg v. Paulk, No. 09-

11897, 2010 WL 816832 (11th Cir. Mar. 11, 2010). This mis-
taken conclusion is based on a misreading of two much more
limited decisions—United States v. Lifshitz, 369 F.3d 173, 190
(2d Cir. 2004) (“special needs” of the probation system may ren-
der a computer monitoring condition reasonable), and Guest v.
Leis, 255 F.3d 325, 333 (6th Cir. 2001) (no expectation of pri-
vacy in messages sent to a public bulletin board system visited
by FBI agent). As discussed in the text, it is true that the
sender cannot prevent the recipient from voluntarily disclosing
the contents; but in the absence of such a voluntary disclosure,
the sender retains an expectation of privacy in the copies of the
communications retained by the sender and by a service pro-
vider.
 17

Fed. of Indep. Bus., 411 Small Business Facts: Tele-

communications, [Link]
[Link]?POLLID=0022.
The proliferation of mobile devices has produced
a significant benefit for businesses, “mak[ing] sure
that employees are only a click or a call away from
work at all times.” John Schulze, Jr., Technology Has
Created the Perpetual Workplace, 34, For the De-
fense, Oct. 2009, [Link]
(S(r4hiuj45mjaudwyvspjtsx3q))/articles/Commercial
Litigation/[Link]. Employees with
employer-provided devices “are expected to remain
tethered to the office 24-7.” Editorial, The IRS
Phones Home, Wall St. J., June 16, 2009.8
A corporate executive can now be just as engaged
in work-related activity while standing in line at the
grocery store or attending a baseball game as she is
when sitting at her office desk. Surveys showcase
this new reality. For instance, some “37% of mobile
users check their mobile email [on their handheld
device] more than 10 times each day. Even on the
weekend, 47% of mobile users check their mobile
email more than 10 times per day.” See Osterman
Research, supra, at 2. And 76% of employees with a
mobile device “always” bring it with them on vaca-
tions. Ibid.; see also Jay Akasie, ‘Addiction’ to Black-
Berries May Bring on Lawsuits, The Sun (N.Y.),

8 See also Jennifer Stisa Granick & Kurt Opsahl, Op-ed, Taking

Reality Into Account, N.Y. Times, Dec. 21, 2009,

[Link]
and-your-blackberry/; Workplace 2.0: The Modern Electronic
Workplace and Issues Faced by Employers, HR Roundtable (The
TemPositions Group of Companies), May 7, 2009, at 3,
[Link]
_2009.pdf.
 18

(N.Y.), Sept. 7, 2006. Smartphone users accordingly

“tend to put in more hours than [the] average em-
ployee” without such a device. See Gemma Simpson,
Study: BlackBerry Users More Productive, Sili-
[Link], July 5, 2007, [Link]
Given that employees carry their employer-
provided devices with them at all times, it is only
natural that they use them to facilitate both personal
and business communications. “[W]orkers increas-
ingly use company-issued mobile devices for texting,
e-mailing and browsing the Internet—sometimes for
work, sometimes for personal use.” Associated Press,
Obama Wants Company Cell Phone Tax Repealed,
MSNBC News, Jan. 31, 2010,
[Link]
personal_finance/. Employees rely on their employer-
provided devices to manage their personal lives as
well as their professional ones. See, e.g., Granick &
Opsahl, supra note 8; William Webb, Wireless Com-
munications: The Future 15:13 (2007). Even employ-
ers whose policies nominally prohibit the personal
use of company devices “frequently turn a blind eye
to employees engaging in personal activities ‘on the
clock’” because of the substantial economic benefits
they gain from personal use of these employer-
provided facilities. See Timothy B. Lee, Snooping
Isn’t the Answer, N.Y. Times, Dec. 21, 2009,
[Link]
our-boss-and-your-blackberry/.
The practice of managing personal activities on
one’s “work” phone has thus become routine for mil-
lions of employees. It represents “one side of a quid
pro quo: the same employee who spends an afternoon
ordering Christmas presents on [Link] may be
expected to take time away from his family to deal
 19

with a weekend emergency at work.” Ibid. Encourag-

ing or allowing the personal use of company-provided
communications devices produces significant busi-
ness advantages, incentivizing employees to employ
their devices ever more frequently, and thus to be
ever more available—and willing—to attend to busi-
ness tasks, in addition to personal ones.
A recent controversy involving the taxation of
personal use of employer-provided devices demon-
strates the degree to which employers accept, and
even encourage, the personal use of company-
provided mobile devices. Under a provision of the In-
ternal Revenue Code enacted in 1989, the value of
personal use of employer-provided cell phones must
be included in an employee’s taxable income unless
the employer or employee maintains detailed records
distinguishing between personal and business calls.
Internal Revenue Service, Notice 2009-46, Substan-
tiating Business Use of Employer-Provided Cell
Phones (June 8, 2009), available at
[Link] The
IRS issued a notice in 2009 requesting comments on
several proposed reforms to the law’s reporting re-
quirements. Ibid.
This request for comment generated uniform op-
position to the reporting requirement. See, e.g., 1-4
Bender’s Payroll Tax Guide § 4.340 (2010); Associate
Press, Obama Wants, supra. The clear message:
“[C]ell phones are so ubiquitous and have become
such an essential business tool that it’s nearly im-
possible to keep track of the line between profes-
sional and personal use.” Kim Hart, IRS Asked to
Repeal Cell Phone Tax, The Hill, Sept. 6, 2009.
Only days after requesting public comment on
the regulatory proposal, IRS Commissioner Doug
 20

Shulman and Treasury Secretary Timothy Geithner

called on Congress to repeal the law outright. See In-
ternal Revenue Service, Statement of IRS Commis-
sioner Doug Shulman, June 16, 2009,
[Link] According to Com-
missioner Schulman, “The passage of time, advances
in technology, and the nature of communication in
the modern workplace have rendered this law obso-
lete.” Ibid. He urged Congress to “make clear that
there will be no tax consequences to employers or
employees for personal use of work-related devices
such as cell phones provided by employers.” Ibid.
The reaction to the IRS’s proposal makes clear
that the personal use of employer-provided devices
represents the prevailing business norm. See Oster-
man Research, supra; Lee, supra.
D. The Court Should Not Address In This
Case The Impact of Employers’ Monitor-
ing Policies On Fourth Amendment Pro-
tection Against Law Enforcement Ac-
cess to Private Sector Or Government
Employees’ Electronic Communications.
This case involves the extent to which govern-
ment employees have a reasonable expectation of
privacy protected by the Fourth Amendment with re-
spect to their use of an electronic communication sys-
tem provided by their employer. One of the principal
arguments advanced by petitioners is that the Police
Department’s internet use policy undermines all rea-
sonable expectation of privacy in this case. See, e.g.,
Pet. Br. 31. Amici do not share that view for the rea-
sons stated below.
To the extent the Court chooses to discuss the ef-
fect of such a government policy on the reasonable-
 21

ness of Officer Quon’s expectation of privacy, it

should make clear that its analysis in this case re-
lates solely to the government workplace context and
not to the very different questions (1) whether a pri-
vate employer’s internal policy regarding monitoring
of electronic communications affects its employees’
reasonable expectation, protected by the Fourth
Amendment, with respect to the privacy of those
electronic communications vis-à-vis government law
enforcement officers; and (2) whether a government
workplace monitoring policy may affect a govern-
ment employee’s reasonable expectation of privacy
with respect to government law enforcement access
to emails and text messages.
The fact that a private employee may agree as a
condition of his use of the employer’s electronic
communication system to permit the employer access
to the content of his communications no more un-
dermines the legitimacy of the employee’s expecta-
tion of privacy vis-à-vis the government than the pri-
vate employer’s right to search the employee’s office
vitiates the employee’s protection under the Fourth
Amendment against an unreasonable government
search of that office. See, e.g., Mancusi v. DeForte,
392 U.S. 364, 369 (1968) (employer’s access to office
does not undermine employee’s reasonable expecta-
tion of privacy vis-à-vis the government).
That distinction is simply a specific recognition of
the general Fourth Amendment principle that per-
mitting other private parties to access protected
spaces or materials does not diminish privacy expec-
tations as against the government or other entities to
whom the private parties have not granted consent.
Admitting a guest to one’s home or allowing an ac-
countant to visit an office and review private papers
 22

does not mean government actors may enter the

home or seize the papers from the individual without
a warrant. So too here. Permitting a private em-
ployer to access messages transmitted on company-
provided devices does not vitiate the employee’s rea-
sonable expectation that the messages will remain
inaccessible to the government.9
When an individual’s employer is the govern-
ment, the inquiry is a bit more complex. To the ex-
tent a government employer has established a le-
gitimate policy providing for access to otherwise pri-
vate places or communications,10 a government em-
ployee cannot make the argument—available to
private sector employees—that the policy has no
relevance to the individual’s expectation of privacy
vis-à-vis the government as employer. But whatever
authority the government may have to monitor em-
ployee communications in its role as employer is lim-
ited to that context, and does not apply to law en-
forcement searches. O’Connor, 480 U.S. at 717 (plu-
rality opinion) (“The operational realities of the
workplace, however, may make some employees’ ex-
pectations of privacy unreasonable when an intru-
sion is by a supervisor rather than a law enforcement
official.”).11 Conclusions regarding the effect on the

9 The Solicitor General explicitly limits her argument regarding

the impact of an employer’s policy to the government employee

context. E.g., U.S. Br. 12 (referring to “government em-
ployer[’s]” reservation of a right of access) & 16 (citing decisions
regarding government policies).
10 As we discuss below, the government’s authority to establish

such policies is constrained by the unconstitutional conditions

doctrine. See note 13, infra.
11 Compare Michigan Dep’t of State Police v. Sitz, 496 U.S. 444

(1990) (allowing highway stops for safety purposes without in-

 23

legitimacy of an expectation of privacy of a policy

adopted by a government employer are not at all
transferable to law enforcement access in either the
public or the private employment situation.
Prudential reasons also counsel against allowing
employment policies to trump employees’ expecta-
tions of privacy in electronic written communica-
tions.
Many private employers have policies permitting
them to access employees’ emails and other commu-
nications for specified purposes. American Manage-
ment Association, The Latest on Workplace Monitor-
ing and Surveillance, Mar. 13, 2008,
[Link] (43% of employees sur-
veyed review computer files whereas 70% filter mes-
sages). Employers desire such access in order to pre-
vent use of their communications system for illegal
purposes, to obtain information relevant to employee
performance, and for other legitimate business rea-
sons. If the unavoidable consequence of agreeing to
employer access on these grounds were unfettered
government access to all of an employee’s emails—
without any judicial oversight—many employees
might be reluctant to use their employer’s systems
for personal messages.
Permitting such automatic government access
would undermine the incentive structure at the
heart of private-sector privacy policies. As we have
discussed, many employers benefit significantly from
their employees’ personal use of employer-provided
communications systems. But surrendering a slight

dividualized suspicion), with City of Indianapolis v. Edmond,

531 U.S. 32 (2000) (prohibiting highway stops for law enforce-
ment purposes without individualized suspicion).
 24

amount of privacy to an employer is one thing; sur-

rendering a broad swath of privacy to the govern-
ment is quite another. Employees might hesitate,
under this system, to use the employer’s communica-
tions devices at all. Or they might use them more
sparingly, thus eliminating the business advantage
derived from employees’ constant use of mobile de-
vices. See pages 17-18, supra.
In addition, holding that an employer’s monitor-
ing policy suffices to eliminate any reasonable expec-
tation of privacy would dramatically restrict the
Fourth Amendment protection accorded individuals’
most private communications. Nothing in this
Court’s jurisprudence supports that result.
For these reasons, the Court should limit its rul-
ing in this case to the government employer context
and make clear that it is not addressing the effect of
employers’ electronic communications system use
policies upon the Fourth Amendment protection
against warrantless law enforcement surveillance of
employees’ written electronic communications.
II. THE SEARCH HERE VIOLATED THE
FOURTH AMENDMENT STANDARD AP-
PLICABLE TO SEARCHES OF GOVERN-
MENT WORKPLACES.
All agree that the issue presented here is gov-
erned by the standard set forth in the plurality opin-
ion in O’Connor v. Ortega, 480 U.S. 709 (1987). The
parties’ disagreement before this Court involves two
case-specific, and entirely record-dependent, issues:
first, whether on the particular facts here Officer
Quon had a reasonable expectation of privacy in the
content of the text messages; and second, whether
the Department’s search was reasonably related to
 25

its goals and not excessively intrusive. There is no

basis for reversing the court of appeals’ determina-
tions regarding these issues, which are fully sup-
ported by the record in this case.
A. The O’Connor Plurality Opinion Sup-
plies The Governing Standard.
This Court in O’Connor addressed public em-
ployees’ Fourth Amendment rights against unrea-
sonable searches by their employer. The O’Connor
plurality recognized that the Fourth Amendment
provides protection against unreasonable searches
conducted by government officials in other non-
criminal contexts and extended that rationale to the
public workplace. See New Jersey v. T.L.O., 469 U.S.
325 (1985) (school officials); Camara v. Municipal
Court, 387 U.S. 523 (1967) (building inspectors);
Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978)
(OSHA inspectors). See also O’Connor, 480 U.S. at
714-15 (citing these cases).12
The O’Connor inquiry is context-specific, examin-
ing the “operational realities of the workplace” to de-
termine whether a public employee has a reasonable
expectation of privacy vis-à-vis her employer. Id. at
717. There is “no talisman that determines in all
cases those privacy expectations that society is pre-
pared to accept as reasonable.” Id. at 715; see also id.
at 718 (“the question whether an employee has a

12 O’Connor applies only to “noninvestigatory work-related in-

trusion[s] or an investigatory search for evidence of suspected

work-related employee misfeasance.” O’Connor, 480 U.S. at
723. Because the jury in this case found that “Chief Scharf’s in-
tent was to ‘determine the efficacy of the character limit,’” Pet.
App. 34, the text message audit falls under O’Connor’s non-
investigatory, work-related intrusion prong.
 26

reasonable expectation of privacy must be addressed

on a case-by-case basis”); id. at 717 (“[t]he employee’s
expectation of privacy must be assessed in the con-
text of the employment relation”). O’Connor there-
fore mandates a case-by-case approach that takes
into account the diversity of workplace environments
and of policies promulgated by government employ-
ers.
If the public employee has a reasonable expecta-
tion of privacy in the workplace, O’Connor adopts a
familiar two-pronged inquiry to ascertain whether a
workplace search was reasonable. First, the search
must be justified at its inception. See id. at 726. A
workplace search is justified at its inception if “nec-
essary for a noninvestigatory work-related purpose
such as to retrieve a needed file” or necessary for an
investigation of workplace-related misconduct. Ibid.
Second, the search must be “reasonably related
in scope to the circumstances which justified the in-
terference in the first place” and “not excessively in-
trusive.” Ibid. (quoting T.L.O., 469 U.S. at 341, 342).
Once again, O’Connor requires a fact-bound inquiry
into the government employer’s actions.
The O’Connor plurality standard has been ap-
plied consistently by the lower courts. See United
States v. Mancini, 8 F.3d 104, 108 (1st Cir. 1993);
Leventhal v. Knapek, 266 F.3d 64, 74 (2d Cir. 2001)
(Sotomayor, J.); United States v. Simons, 206 F.3d
392, 398 (4th Cir. 2000); United States v. Johnson, 16
F.3d 69, 73-74 (5th Cir. 1994); Am. Postal Workers
Union v. U.S. Postal Serv., 871 F.2d 556, 560 (6th
Cir. 1989); Narducci v. Moore, 572 F.3d 313 (7th Cir.
2009); Biby v. Bd. of Regents, 419 F.3d 845, 850-851
(8th Cir. 2005); United States v. Taketa, 923 F.2d
665, 673-674 (9th Cir. 1991); United States v. Ange-
 27

Angevine, 281 F.3d 1130, 1134 (10th Cir. 2002);

United States v. Esser, 284 Fed. Appx. 757, 758-759
(11th Cir. 2008); Stewart v. Evans, 351 F.3d 1239,
1243 (D.C. Cir. 2003) (Roberts, J.). The standard
strikes a manageable and appropriate Fourth
Amendment balance between the government’s in-
terest in running an efficient workplace and public
employees’ rights to privacy.
Indeed, petitioners and the Solicitor General
agree that the O’Connor plurality opinion supplies
the appropriate test. Pet. Br. 22-28; U.S. Br. 12-13 &
27-28.
B. The Government Employee Respon-
dents Had A Reasonable Expectation Of
Privacy In Their Text Messages.
Under O’Connor, all of the “operational realities
of the workplace,” 480 U.S. at 717, must be consid-
ered in determining whether there is a reasonable
expectation of privacy. Both courts below correctly
held that the officers had a reasonable expectation of
privacy in the content of the text messages sent and
received via the government-provided pagers.
Petitioners do not argue that the sender and re-
cipient of a text message may never have a reason-
able expectation of privacy in the message’s contents.
See Pet. Br. 63 (“But whether users of text mesaging
generally have a reasonable expectation of privacy in
the content of text messages is not the issue here.”);
U.S. Br. 31 n.14 (“[N]o party has argued in this case
that respondents lost all expectation of privacy the
moment their messages were passed to [the wireless
provider] for delivery * * *.”). Rather, the arguments
advanced by petitioners and their amici turn on the
particular facts of this case. When those facts are ex-
 28

amined, however, they plainly support the lower

courts’ determination.
1. Lieutenant Duke’s Interpretation Of
The Department’s Policy, Together
With His Settled Practice, Supported
A Reasonable Expectation Of Pri-
vacy.
Both courts below concluded (a) that the City did
not have a written policy that expressly governed the
use of the pagers, Pet. App. 6, 29-31, 47-48, 49-51,
88-89, 90-91; see also id. at 127; and (b) that the De-
partment had “informal—but express and specific—
policy and practices that did govern use of the
pagers” id. at 127 (Wardlaw, J.) (concurring in the
denial of rehearing en banc); see also id. at 30, 98.
“[T]his Court has frequently noted its reluctance to
disturb findings of fact concurred in by two lower
courts.” Rogers v. Lodge, 458 U.S. 613, 623 (1982);
see also Tiffany Fine Arts, Inc. v. United States, 469
U.S. 310, 317 n.5 (1985). And the two factual find-
ings concurred in by the lower courts here compel the
conclusion that Officer Quon had a reasonable expec-
tation in the privacy of his email messages.
First, the position of petitioners and their amici
is premised almost exclusively on the contention that
the Department’s written “no privacy” policy encom-
passed text messages. E.g., Pet. Br. 31-35. But that
written policy did not expressly include pagers or
text messaging; indeed, the policy had been issued
to, and acknowledged by, Officer Quon before the
Department even acquired the pagers. Pet. App. 5.
That is why both lower courts found as a factual
matter that the written policy was inapplicable.
 29

Second, petitioners’ sole support for their conten-

tion that the policy encompassed text messages is
Lieutenant Duke’s testimony that he informed mem-
bers of the Police Department that pager messages
would fall within the policy. Pet. Br. 33-34. But this
is the very same Lieutenant Duke who established
the informal policy and practice that text messages
would not be reviewed as long as employees paid any
overage charges.
Lieutenant Duke explained that the “practice
was, if there was overage, that the employee would
pay for the overage that the City had.” Pet. App. 6
(internal quotation marks omitted). He testified that
Officer Quon “needed to pay for his personal mes-
sages so we didn’t—pay for the overage so we didn't
do the audit.” Pet. App. 51; see also id. at 8 (Officer
Quon testified that he was told by Lieutenant Duke
that “if you don’t want us to read [your messages]
pay the overage fee”).
Moreover, the Department’s actual practice was
consistent with this informal policy established by
Lieutenant Duke. Each time Office Quon exceeded
the monthly allotment, Lieutenant Duke would tell
him how much he owed and Officer Quon would pay
that amount; the Department did not review Officer
Quon’s messages. Pet. App. 7-8. This practice was
maintained for several months until Lieutenant
Duke precipitated the review of text messages that
gave rise to this action. Ibid. The district court found:
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 state-
 30

ments 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. * * * 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.
Id. at 90.
In light of these facts, both courts below con-
cluded that “it was reasonable for Quon to rely on the
policy—formal or informal—that Lieutenant Duke
established and enforced.” Pet. App. 31; see also id.
at 90-91 (“Lieutenant Duke effectively provided em-
ployees 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”). Lieutenant Duke’s informal, per-
missive policy contrasts sharply with an environ-
ment in which “searches were frequent, widespread,
or extensive enough to constitute an atmosphere so
open to fellow employees or the public that no expec-
tation of privacy is reasonable.” Leventhal, 266 F.3d
at 74 (internal quotation marks omitted) (Sotomayor,
J.).
Third, petitioners and the Solicitor General ar-
gue that Lieutenant Duke did not occupy a policy-
making position in the Department and therefore
could not alter the written policy. But the written
policy did not by its terms apply to text messaging—
the only basis for extending it to include text messag-
ing is the statement to that effect by Lieutenant
Duke. And if (as petitioners and the Solicitor General
 31

assume) Lieutenant Duke had sufficient authority to

make that statement, he necessarily had sufficient
authority to enunciate and implement the policy and
practice against reviewing the content of text mes-
sages.
For that reason, the nature of Lieutenant Duke’s
authority is beside the point on the facts here. Be-
cause petitioners themselves rely on the authorita-
tive nature of some of Lieutenant Duke’s statements,
petitioners cannot dispute the authoritative status of
the statements and actions of the same individual re-
lied upon by respondents.
Fourth, petitioners point to O’Connor in assert-
ing that a Department “no privacy” policy would viti-
ate any reasonable expectation of privacy in text
messages sent over government-provided pagers.
Pet. Br. 31-35. But petitioners overstate O’Connor,
which merely observed that there was no applicable
government access policy—and therefore could not,
and did not, hold that an access policy is dispositive
in every case. O’Connor, 480 U.S. at 719 (noting that
there was no evidence of any established “reasonable
regulation or policy discouraging employees * * *
from storing personal papers and effects in their
desks”). Moreover, the O’Connor inquiry is context-
specific and looks to “actual office practices and pro-
cedures” and “legitimate regulation.” Id. at 717 (em-
phasis added). Thus, even if the Department’s writ-
ten policy addressed the issue of pager usage, it
would not be dispositive.13

13 For example, a government agency engaged in routine admin-

istrative functions surely could not require as a condition of

employment that employees waive all Fourth Amendment
rights with respect to searches of the employee’s person and of-
 32

Fifth, petitioners, but not the Solicitor General,

argue that a special standard should apply to text
messages of police SWAT teams because there may
be a need to review such messages in connection with
after-action analyses of SWAT team activity. See Pet.
Br. 29-31.
There is no basis in O’Connor for such an ap-
proach. The fact that the government may at some
point have a legitimate basis to review employee text
messages, or emails, or physical documents, does not
mean that the employee lacks any reasonable expec-
tation of privacy. Indeed, under this theory no gov-
ernment employee would ever have any Fourth
Amendment protection with respect to the workplace
because some set of facts could be hypothesized that
could justify review of his emails or documents. This
Court should reject petitioners’ attempt to reduce the
O’Connor standard to a dead letter.
2. The California Public Records Act
Does Not Undermine The Employees’
Reasonable Expectation Of Privacy.
Petitioners also point to the California Public Re-
cords Act (CPRA), Cal. Gov’t Code § 6250, in assert-
ing that respondents had no reasonable expectation
of privacy. Pet. Br. 35-40.
The fact that an electronic record may be re-
viewed in response to a CPRA request does not un-

fice. That is because the government may not impose “unconsti-

tutional conditions” in an attempt to circumvent the Fourth
Amendment. See Chandler v. Miller, 520 U.S. 305 (1997) (hold-
ing that candidates for public office cannot be required to sub-
mit to a suspicion-less drug test); cf. Rumsfeld v. Forum for
Academic and Institutional Rights, Inc., 547 U.S. 47. 59-60
(2006) (discussing unconstitutional conditions doctrine).
 33

dermine an employee’s reasonable expectation of pri-

vacy in that record any more than such a review
would vitiate the employee’s expectation of privacy
with respect to personal paper files kept in a gov-
ernment employee’s office.14 An individual’s reason-
able expectation of privacy is not binary: The fact
that someone might review records pursuant to the
CPRA does not open the door to review by the gov-
ernment for any purpose whatever. Under peti-
tioner’s theory, any document potentially subject to
mere review—not even disclosure—whether under
the CPRA, the Freedom of Information Act (FOIA), 5
U.S.C. § 552, or the Presidential Records Act (PRA),
44 U.S.C. § 2201, would be stripped of any protection
under the Fourth Amendment. That expansive con-
tention would deprive the private papers of numer-
ous public employees of all protection simply because
they are located in those employees’ government of-
fices.
Finally, it is unlikely that the CPRA would re-
quire disclosure of the text messages—even if the
messages were subject to the CPRA in the first place.
The California courts have construed the CPRA to
exempt from disclosure as a general matter purely
personal information. California State University v.
Superior Court, 108 Cal. Rptr. 2d 870, 879-880
(2001) (“The mere custody of a writing by a public
agency does not make it a public record * * *.
[P]urely personal information unrelated to ‘the con-

14 That is especially true when, as here, the lower courts found

that there is “no evidence * * * suggesting CPRA requests to the

department are so widespread or frequent as to constitute ‘an
open atmosphere so open to fellow employees or the public that
no expectation of privacy is reasonable.’” Pet. App. 94 (quoting
Leventhal, 266 F.3d at 74).
 34

duct of the public’s business’ could be considered ex-

empt from this definition, i.e., the shopping list
phoned from home, the letter to a public officer from
a friend which is totally void of reference to govern-
mental activities.”) (citations omitted); see also Cal.
Gov’t Code § 6254(c) (exempting from CPRA docu-
ments whose disclosure “would constitute an unwar-
ranted invasion of personal privacy”). Other states
have reached similar conclusions in the context of
electronic communications. See, e.g., Griffis v. Pinal
County, 156 P.3d 418 (Ariz. 2007); Denver Pub. Co. v.
Board of County Comm’rs, 121 P.3d 190 (Colo. 2005).
Amici media and publishing organizations cor-
rectly point out that even private communications
may be subject to disclosure under certain circum-
stances where those communications relate to the
public interest—for example, where communications
reflect a dereliction of official duties or a bias that
renders the person unfit for his or her position. Am.
Br. 24-25. But disclosure under such circumstances,
where personal privacy is implicated, is the result of
a case-by-case balancing of “the public’s interest in
disclosure and the individual’s interest in personal
privacy.” International Federation of Professional
and Technical Engineers, Local 21, AFL-CIO v. Su-
perior Court, 165 P.3d 488, 493 (Cal. 2007). This bal-
ancing might well justify disclosure of only some por-
tions of a document—for example, the time at which
a personal text was sent and the recipient, but not
the contents. Cf. Tiberino v. Spokane County, 13 P.3d
1104 (Wash. Ct. App. 2000) (personal e-mails fell
within public records act when used by county to jus-
tify termination of employee, but contents of e-mails
exempt from disclosure on grounds of privacy). The
fact that disclosure of purely personal documents is
not the norm under the CPRA is yet another reason
 35

why the statute does not undermine Officer Quon’s

reasonable expectation of privacy in his personal text
messages.
C. The Search Of The Text Messages Was
Unreasonable In Its Scope.
The court of appeals correctly determined that—
on this record—the search was not reasonably re-
lated to its objectives and was excessively intrusive.
Pet. App. 34-36.
It is common ground that the “least restrictive
means” test is inapplicable to the O’Connor inquiry.
And, contrary to petitioner’s suggestions, Pet. Br. 45-
50, the court below did not engage in “least restric-
tive means” analysis. Pet. App. 33-36; see also id. at
133 (Wardlaw, J., concurring in denial of rehearing
en banc). Rather, the court below faithfully applied
the O’Connor standard.
The jury concluded that the sole purpose for the
search was to “determine the efficacy of the existing
character limits to ensure that officers were not be-
ing required to pay for work-related expenses.” Pet.
App. 119. Although this purpose was permissible, the
means chosen were excessively intrusive.
To begin with, the option chosen by petitioners
was unlawful. The court of appeals held that disclo-
sure of the text messages to petitioners violated fed-
eral law. The decision to utilize that search option
was therefore necessarily unreasonable and exces-
sively intrusive.
Even under petitioners’ view of the privacy pol-
icy, which permits “light personal communications,”
Pet. Br. 4, moreover, the content audit could reveal
embarrassing or inherently private information, such
 36

as a visit to an oncologist, a therapist, or a divorce

attorney.
And there were a myriad of alternative options
available to verify the efficacy of the character limit.
For example, petitioners could, consistent with the
Fourth Amendment, have compared the phone num-
bers on Officer Quon’s bill against a list of Depart-
ment phones. Compare Katz v. United States, 389
U.S. 347 (1967) (prohibiting the government from
bugging a public telephone booth without a warrant),
with Smith v. Maryland, 442 U.S. 735 (1979) (per-
mitting the use of a pen register device to capture
phone numbers dialed because that information is
conveyed to the phone company). If the government
found that Officer Quon frequently and consistently
texted non-Department phones—such as his wife’s—
petitioners would have fulfilled the character-limit
purpose of their audit.
Alternatively, the Department could have asked
Officer Quon to review the messages himself and re-
veal work-related messages totaling more than
25,000 characters in a month. If he could not do so,
the Department would know that the existing char-
acter limit was appropriate; if he produced messages
exceeding the limit, the Department would know
that the limit was too low. Pet. App. 35-36. Because
the government could have fulfilled its interest fully
without reviewing the messages itself, the approach
it chose was excessively intrusive and violated the
constitutional standard.
 37

D. Because The Search Of The Officers’

Text Messages Was Unreasonable, Peti-
tioners Also Violated The Fourth
Amendment Rights Of The Private Indi-
viduals Who Sent Messages To The Offi-
cers.
If petitioners’ search of Officer Quon’s text mes-
sages violated his Fourth Amendment rights, then it
also violated the Fourth Amendment rights of the
persons who sent messages to him. As we have dis-
cussed (at pages 14-15, supra), the sender of a mes-
sage does not lose his Fourth Amendment protection
the moment the message is sent. If the content of the
message is not obtained through voluntary disclosure
by the recipient or compelled disclosure in compli-
ance with the Fourth Amendment, the sender’s
rights are violated as well. The government must ob-
tain access from either sender or recipient in a man-
ner that comports with the Fourth Amendment.
On the other hand, if, contrary to our position,
petitioners did not violate Officer Quon’s Fourth
Amendment rights in obtaining the messages, then
the other respondents cannot claim that their consti-
tutional rights were violated. The government’s le-
gitimate acquisition of the messages vitiates any con-
stitutional claim that the senders otherwise could
assert.
CONCLUSION
The judgment of the court of appeals should be
affirmed.
 38

Respectfully submitted.

DAN M. KAHAN ANDREW J. PINCUS

SCOTT L. SHUCHART Counsel of Record
Yale Law School CHARLES ROTHFELD
Supreme Court Clinic Mayer Brown LLP
127 Wall Street 1999 K Street, NW
New Haven, CT 06511 Washington, DC 20006
(203) 432-4992 (202) 263-3000
apincus@[Link]
STEVEN R. SHAPIRO GREGORY A. BECK
American Civil Public Citizen
Liberties Union 1600 20th Street, NW
Foundation Washington, DC 20009
125 Broad Street (202) 588-7713
New York, NY 10004
(212) 549-2500

Counsel for Amici Curiae

MARCH 2010