High court to examine privacy at work case

The Supreme Court agreed Monday to hear a case that potentially calls into question whether employers can stop their workers from sending personal messages using company equipment.

The case centers on the personal and often sexually explicit text messages sent and received by Ontario, Calif., police Sgt. Jeff Quon on a department-issued pager.

“It will be the first time the Supreme Court addresses the expectations of privacy in the modern workplace,” said William Carroll, an employment and labor law lawyer. “The expectation is that the Supreme Court is going to bring clarity to an area that has been muddied somewhat.”

In the case, City of Ontario v. Quon, the police department purchased text-messaging pagers to improve logistical communications among members of its SWAT team. But Sgt. Quon used his pager to exchange hundreds of personal messages with another sergeant on the SWAT team, with his wife and with his girlfriend, a dispatcher at the department.

The police chief ordered an audit of Sgt. Quon’s text messages because he routinely exceeded his monthly allowance. An internal review determined that Sgt. Quon sent and received an average of 28 text messages per shift, only three of which were work-related.

The department said it could do so because Sgt. Quon had signed an agreement with the city that stated: “The City of Ontario reserves the right to monitor and log all network activity including e-mail and Internet use, with or without notice. Users should have no expectation of privacy or confidentiality when using these resources.”

According to the city, Sgt. Quon was informed the e-mail policy also applied to text-message pagers.

The department received transcripts of Sgt. Quon’s messages from the company that provided the texting service. But Sgt. Quon sued, accusing the city of invading his privacy.

He lost the case at trial. But the 9th U.S. Circuit Court of Appeals in San Francisco — which is considered the most liberal and most frequently overturned appellate panel — sided with Sgt. Quon.

The appeals court decision was based in part on an informal agreement that the lieutenant who administered the pagers had with the other officers, in which he would not audit their pagers if they agreed to pay for any overage charges.

That court ruled that the informal agreement was the department’s “operational reality” and gave Sgt. Quon “a reasonable expectation of privacy.”

The Supreme Court agreed to hear the city’s appeal of the appeals court decision. Arguments are scheduled for the spring, with a decision likely before the end of the court’s term in June.

Privacy advocates see the 9th Circuit’s ruling as a step forward in the emerging area of electronic privacy.

“Quon is a smart, forward-looking opinion that applies constitutional principles to new communications technologies,” said Marc Rotenberg, executive director of the Electronic Privacy Information Center. “We hope that the Supreme Court will affirm the decision of the 9th Circuit.”

But some legal experts think upholding the appeals court could do wide-ranging damage to businesses.

Story Continues →