- The Washington Times - Tuesday, December 15, 2009

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.

Sheryl Willert, a past president of DRI, an association of civil defense lawyers, said that if the Supreme Court affirms the lower court’s ruling, the greater privacy rights of employees would come at a great cost to business operations.

“Sometimes in an effort to achieve the objective of what is going on in the workplace, you need to do things like check if someone has been sitting at their desk all day surfing the Internet,” she said.

Ms. Willert also envisioned a scenario in which the expectation of privacy becomes so prevalent that an employee who makes a potentially lucrative discovery on company time, using company equipment, would go to court to argue the development should belong to them and not the company — the polar opposite of the current legal understanding of such situations, she said.

The Quon case only applies to public-sector employees, as the 9th Circuit found that the police department violated Sgt. Quon’s Fourth Amendment right against unreasonable government search and seizure. But several legal experts told The Washington Times that state courts handling similar cases involving the private sector will undoubtedly look to the Supreme Court’s ruling for guidance.

Several lawyers and legal analysts also told The Times they expect the Supreme Court will overturn the lower court’s ruling.

“I think the fact that we’re dealing with a police department, which has a heightened duty to control its workspace, may have a significant impact,” said Jesse Jauregui, an employment and labor lawyer. “I don’t see the court allowing police officers to have a greater expectation of privacy.”

Robert Langran, a Villanova University political science professor who specializes in constitutional law, predicted a 5-4 overturning of the 9th Circuit, with frequent swing vote Justice Anthony M. Kennedy providing the fifth and deciding vote.

“I’m kind of guessing that they are going to overturn the court of appeals and rule for the city,” he said.

However the case turns out, it may offer valuable lessons to businesses.

“It highlights the need for companies to focus on having policies that apply to emerging technologies,” said Renard C. Francois, a privacy and data protection lawyer at Caterpillar Inc.

In other action Monday, the justices:

• Agreed to consider whether immigrants can be deported for repeated cases of minor drug-possession offenses.

• Refused to hear a challenge to a 2005 law that denies shooting victims the ability to sue gun makers.

• Rejected without comment an appeal by four Britons who say they were tortured and denied religious rights at the detention facility for terrorism suspects at the U.S. Naval Base Guantanamo Bay, Cuba.

• Declined a challenge by Indiana state pension funds against the bankruptcy filing by Chrysler LLC.

• Ben Conery can be reached at bconery@washingtontimes.com.

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