Court to rule on privacy of texting

By Robert BarnesWashington Post Staff Writer Tuesday, December 15, 2009

The Supreme Court will decide whether employees have a reasonable expectation of privacy for the text messages they send on devices owned by their employers.
The case the court accepted Monday involves public employees, but a broadly written decision could hold a blueprint for private-workplace rules in a world in which communication via computers, e-mail and text messages plays a very large role.
A federal appeals court in California decided that a police officer in the city of Ontario had a right to privacy regarding the texts he sent on his department-issued pager, even though his chief discovered that some of them were sexually explicit messages to his girlfriend. That court said the chief's decision to read the messages without a suspicion of wrongdoing on the part of the officer violated Fourth Amendment protections against unreasonable searches.
The ruling, by a panel of the U.S. Court of Appeals for the 9th Circuit, was the first of its kind, and the judges acknowledged that the "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."
The case produced a deep divide among the circuit's judges. When the full court decided not to reconsider the decision, a 10-page dissent calling it "contrary to the dictates of reason and common sense" seemed written to interest the Supreme Court in the issue.
Most employers routinely tell their workers that they have no expectation of privacy when it comes to e-mail and other communications that involve company equipment, and the city of Ontario is no different. It says it "reserves the right to monitor and log all network activity including e-mail and Internet use, with or without notice."
But Jeff Quon, the police officer in the case, said the department sent a different message when it handed out pagers to SWAT team members. The department said that the devices were limited to 25,000 characters each month, but that officers also using them for personal purposes could pay for any overage charges.
When the police chief wondered whether the devices were being used mostly for personal messages, the company that provided the texting service, Arch Wireless, turned over transcripts. They showed that a large portion of Quon's messages were personal and many of them were sexually explicit. According to court documents, a review of one month's use showed that 57 of Quon's 450 messages were business related.
But Quon and three others sued after they learned that their messages had been read.
Judge Kim McLean Wardlaw wrote the circuit court's opinion supporting Quon. She said that the "extent to which the Fourth Amendment provides protection for the contents of electronic communications in the Internet age is an open question." But she and two other judges also said the department's informal policy that personal messages were allowed on the devices meant Quon "had a reasonable expectation of privacy in the text messages."
The city told the Supreme Court that the panel had it wrong. "To warrant Fourth Amendment protection, a government employee's expectation of privacy must be one that society is prepared to consider reasonable under the operational realities of the workplace," the city said, echoing the words of the court's previous decision on workplace privacy.
In this case, its brief said, "the SWAT team sergeant failed to comport himself as a reasonable officer would have, and he and the other plaintiffs embarrassed themselves through their lack of restraint in using a city-owned pager for personal and highly private communications. The city of Ontario should not have to pay for that."
Jane McFetridge, a Chicago lawyer who often represents employers in workplace issues, said the issue is "one of increasing importance to employers." Though the case before the court involves government employees, she said, case law in the private workplace often evolves from such decisions.
She said that in the world of laptops, cellphones and BlackBerrys, the line between business and personal communications is often blurred and that employers are tolerant "within the realm of reason."
But often they are under legal obligation to monitor computer use, she said, citing as an example a school district's need to watch for employees who visit child pornography sites. And when employers monitor the computer use of their workers, she said, it is often because of complaints from co-workers.
"It's done when someone thinks they are being taken advantage of," she said.
The case, Ontario v. Quon, will be heard in the spring.