Amicus Brief: City of Ontario v. Quon

Nancy Thorington was an attorney for amici curiae League of California Cities and California State Association of Counties in support of the petitioners City of Ontario, Ontario Police Department and Lloyd Scharf.

"The amici, as representatives of local public entities throughout California, have a vital interest in ensuring that public entities as employers can adequately supervise the workplace and, among other things, ensure their electronic equipment purchased with taxpayer funds is used principally to serve taxpayers’, not personal, interests."

Excerpt:

“The City of Ontario has a written policy governing the use of City computers, the Internet and email …. [which] prohibits the use of City-owned electronic equipment for personal use, except for light personal use, and clearly states that users have no expectation of privacy or confidentiality when using such equipment.

In spite of this written policy, the Ninth Circuit held that [Police] Sergeant Jeff Quon … had a reasonable expectation of privacy in the [personal] text messages archived for the City by its wireless service provider.

[T]he operational realities of the police department demonstrate that … expectation of privacy in the text messages was not reasonable. ... [T]he text messages are potentially disclosable pursuant to a public records request to the City. And the text messages were sent to and archived by a private third party. Thus, Quon had no access or control over the text messages once he sent them.

The issue presented must be addressed in a way that allows public employers to effectively manage their workplaces. The Ninth Circuit’s holding would require that public employers obtain a search warrant before reviewing their own electronic text data. Such a requirement is manifestly unworkable and would impede supervisorial reviews. Warrants will be sought only in the most extreme cases where substantial harm to the public agency has already occurred. The workplace interests will have already been subverted, and the taxpayers’ interests will have already been compromised.”

Go here to read the full brief on the City of Ontario v. Quon.