Will the Supreme Court Rethink Public Employee Privacy Rights in Quon?

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.