Ontario police sergeant Jeff Quon, along with other officers and those they were exchanging messages with, had sued the city, their superiors and the pager service provider in federal court.

It decided the case purely on the reasonableness of the pager audit, explicitly refusing to consider "far-reaching issues" it raised on the grounds that modern communications technology and its role in society was still evolving.

[1] An article in The New York Times later summarized this criticism, and its "faux unanimity", as emblematic of what some judges and lawyers have found an increasingly frustrating trend in Roberts Court opinions.

The policy did not specifically mention text messages, but employees were told both verbally, at a staff meeting and through a memorandum that they were included and that only "light personal communications" were allowed during work hours.

Congress had passed the Electronic Communications Privacy Act in 1986, which addressed issues raised as more and more companies stored records with highly personal data about individual consumers in off-site databases operated by third parties.

[8] The following year, 1987, the Supreme Court had first dealt with the Fourth Amendment rights of government employees under administrative investigation in O'Connor v. Ortega, a case arising from the search of a supervising physician's office and records at a California public hospital.

[9] Following the principle laid out in Connick v. Myers, an earlier decision concerning the constitutional rights of public employees, that "government offices could not function if every employment decision became a constitutional matter",[10] the majority distinguished between searches "merely incident to the primary business of the agency," such as the retrieval of a document or tool from a desk or locker and thus not requiring a warrant at all, from those conducted to investigate a possible violation of workplace rules and procedures.

The plaintiffs argued that since Duke was the officer in charge of the contract with Arch, and the policy change that covered the pagers was never communicated in any definitive way, his assurance that he would not read Quon's messages if he reimbursed the city was all that mattered.

[14] In 2003 Quon, his ex-wife, girlfriend[6][note 1] and another officer, Steve Trujillo, sued the city, the department, the police chief and Arch in Central California U.S. district court, Eastern Division, in Riverside.

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.

Wardlaw, writing for all three, noted that "[t]he recently minted standard of electronic communication via e-mails, text messages, and other means opens a new frontier in Fourth Amendment jurisprudence that has been little explored".

[18] George Washington University law professor Orin Kerr, a Fourth Amendment scholar who was cited in the opinion, called it "a noteworthy holding that I think is correct and very important" at the Volokh Conspiracy blawg.

They reiterated many of Ikuta's points, particularly her criticism of the panel's apparent adoption of the rejected least-intrusive-means test, and said it would be an "excellent vehicle" for revisiting O'Connor in light of new technology that complicated the workplace privacy issue.

[22] In opposition, Quon and the other respondents argued, as Wardlaw's concurrence had, that Ikuta and petitioners had greatly exaggerated the role that the less-intrusive-means test had played in the panel opinion, and that the facts of the case did not present any constitutional issues.

It would be the first case touching on the workplace privacy rights of public employees since Von Raab, and raised the possibility that the Court would resolve the O'Connor conflict between Scalia's private-workplace standard and the plurality's "operational realities" consideration.

[29] New justice Sonia Sotomayor was expected to favor the city's side, since she had ruled for New York State's right to search an employee's computer in a similar case as a judge on the Second Circuit.

[15] Elsewhere, he said the Court would be better off avoiding the question of whether the department violated the privacy of the people Quon was texting due to the lack of clear precedent for such a ruling with older technologies and the minimal treatment of the issue in the lower-court opinions.

[33] The respondents urged the Court to use the case to adopt the O'Connor plurality's "operational realities" standard, and set forth a more extensive response to the pettioners' claim that the text messages' status as public records was fatal to any reasonable expectation of privacy by any correspondent.

Justice Sotomayor asked Richland about a hypothetical scenario in which a sergeant knew that various officers engaged in sexually explicit texting with romantic partners and decided to look at the transcripts out of sheer salacity.

Richland replied that the statute was complex and highly technical, and cited the Court's 1980 United States v. Payner[52] to the effect that "a complicated law ... simply cannot be the basis for a reasonable expectation of privacy".

[54] When Dammeier argued for the respondents, Ginsburg and Breyer pressed him on why it was unreasonable for the department to review the content of the messages if it wanted to find out if it needed a higher character limit.

He elaborated on these uncertainties, referring to the amici briefs filed by the EFF and NYIPLA: Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices.

But at the same time they were affordable enough that anyone wanting one for such a purpose could buy their own rather than use one provided by an employer[61] "A broad holding concerning employees' privacy expectations vis-à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted," Kennedy wrote.

The Court's implication ... that where electronic privacy is concerned we should decide less than we otherwise would (that is, less than the principle of law necessary to resolve the case and guide private action)—or that we should hedge our bets by concocting case-specific standards or issuing opaque opinions—is in my view indefensible.

"Any rule that requires evaluating whether a given gadget is a 'necessary instrumen[t] for self-expression, even self-identification,' on top of assessing the degree to which 'the law's treatment of [workplace norms has] evolve[d],' ... is (to put it mildly) unlikely to yield objective answers.

[65] "Holding off from making broad pronouncements in the midst of a rapidly changing technology environment is a wise display of restraint by the court," agreed The Washington Post three weeks later.

In March 2010, she had written for a panel deciding Rehberg v. Paulk, a case in which a Georgia man had sued the Dougherty County district attorney alleging malicious prosecution for an investigation into harassing faxes sent to a local hospital.

[2] A Harvard Law Review article criticized the decision, concurring with Scalia and Hull that it provided "no helpful guidance" to lower courts in resolving similar cases.

"[I]ts reluctance to devise an intelligible principle for Fourth Amendment rights regarding technology will have the negative effect of causing lower courts to rely on O'Connor to an even greater extent, [allowing] judges...to reach whatever conclusion they want.

"Because this holding is so limited, it practically begs for a new case to address the issue more broadly", wrote Amanda Higgins of the Ninth Circuit's opinions, in the Oklahoma Journal of Law and Technology.