The Supreme Court will hear arguments Monday in a case that could impact every American worker who uses a computer, blackberry or text messaging device–whether for innocent messages to loved ones or sexually-charged texts to a mistress.
A final ruling from the justices may establish guidelines on how far the right to privacy covers personal e-mail messages and other communications that workers send or receive on their employer-issued devices.
The use of email and text messaging is ubiquitous. A recent study concluded that 47 billion e-mails are sent worldwide daily. A different study calculated that Americans send nearly 5 billion text messages each day. Those reports do not distinguish messages sent from employer or personally-owned devices.
“Encouraging or allowing the personal use of company-provided communications devices produces significant business advantages, incentivizing employees to employ their devices ever more frequently, and thus to be ever more available-and willing-to attend to business tasks, in addition to personal ones,” lawyer Andrew Pincus wrote to the Supreme Court on behalf of several organizations in support of two police officers who sued their boss after he obtained a print out of their text messages.
Sergeants Jeff Quon and Steve Trujillo were part of the Ontario, California SWAT team who received pagers capable of sending text messages. Officials with the police department, located 35 miles east of Los Angeles, believed the pagers would help expedite internal communications especially during critical situations.
Several months after the pagers were issued, Quon’s boss asked for a read-out of his messages. As it turned out, most of Quon’s texts were not work related. “To say the least, [the messages were] sexually explicit in nature,” observed Judge Virginia Phillips. The majority of Quon’s personal messages went to his estranged wife, his office girlfriend and Trujillo.
Once Quon found out about the police chief’s decision to look at the messages he and the people he was messaging sued claiming the boss had no right to look at the communications. The quartet lost their case when a jury concluded the chief’s decision to look at the messages was prompted by concerns over the cost of the messages.
The Ninth Circuit U.S. Court of Appeals reversed that decision. A three judge panel ruled that an informal arrangement Quon had with his immediate supervisor to cover any excess costs was enough of a policy to assure Quon that his messages wouldn’t be read by superiors.
A key issue in the case will be how the justices interpret a standard the high court created in 1987 that focuses on the “operational realities of the workplace.” The Ninth Circuit concluded that the excess cost arrangement was a sufficient reality in the police department that when Quon’s boss gained access to the messages, he violated Quon’s right to privacy.
“The Ninth Circuit properly found that the search was excessively intrusive,” Quon’s lawyer, Dieter Dammeier, wrote to the Supreme Court in asking the justices to uphold the lower court’s decision
The lawyer for the Ontario Police Department highlights a signed statement by the officers that they “should have no expectation of privacy or confidentiality” in using city owned computers or other devices. The pagers were distributed after the officers signed the statements, but the city contends a meeting was held telling the officers that the pagers were included in the statement.
“The panel erroneously overextended Fourth Amendment protection with its sweeping ruling that individuals who send text messages to a government employee’s workplace pager-rather than to a privately owned pager-reasonably expect that their messages will be free from the employer’s review,” Kent Richland argues.
The city further objects to the Ninth Circuit’s ruling that also covered the privacy rights of the people on the other end of Quan’s messages. The panel concluded that the recipients had a right to expect that their messages to Quon would not be seen by his boss; likening them to letters or phone calls.
“These plaintiffs, who knowingly exchanged text messages with a police officer on his police department pager-rather than on a privately owned pager-could not reasonably expect that their messages would be free from the department’s review in its capacity as a public employer,” Richland said.
The case is City of Ontario v. Quon.