- The Washington Times - Thursday, June 17, 2010

In its first decision addressing the evolving intersection of communication technologies and workplace etiquette, the Supreme Court ruled Thursday that text messages sent by a police officer on department equipment cannot be kept secret from his superiors.

But the court ruled narrowly in the unanimous decision, and questions remain regarding whether employers can stop their workers in all cases from sending personal messages using company equipment.

“A broad holding concerning employees privacy expectations vis-a-vis employer-provided technological equipment might have implications for future cases that cannot be predicted,” Justice Anthony M. Kennedy wrote in the court’s opinion. “It is preferable to dispose of this case on narrower grounds.”

The ruling essentially maintains the status quo of allowing employers to implement policies preventing employees from using company communication equipment for personal use.

But Bart Lazar, an intellectual-property lawyer whose expertise includes privacy and security involving electronic communications, said the narrowness of the ruling leaves open scenarios in which employees could keep private communications made on company equipment.

The Supreme Court made its ruling in a case that 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.

The 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 his wife, his mistress, who is a dispatcher at the department, and another sergeant on the SWAT team.

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 was allowed to audit Sgt. Quon’s messages because he 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 that 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 - sided with Sgt. Quon and ruled that the audit violated the Fourth Amendment’s protection against “unreasonable searches and seizures.”

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 essentially a modification of the department’s policy and gave Sgt. Quon “a reasonable expectation of privacy.”

The Supreme Court reversed the lower court, but avoided the issue of whether the actions of Sgt. Quon’s supervisor undermined the department’s stated policy and meant the texts could be kept secret.

The court said that issue didn’t matter because the department’s audit had a “legitimate work-related purpose,” an allowable exception to the constitutional protection against unreasonable searches and seizures.

“As a law enforcement officer, he would or should have known that his actions were likely to come under legal scrutiny, and that this might entail an analysis of his on-the-job communications,” Justice Kennedy wrote. “Under the circumstances, a reasonable employee would be aware that sound management principles might require the audit of messages to determine whether the pager was being appropriately used.”

Mr. Lazar said the decision leaves unresolved the issue of whether an employee could ultimately have privacy rights using company equipment because of a supervisor’s modification of written policy, such as what happened in the Quon case.

“That’s the loophole that wasn’t closed by the decision,” Mr. Lazar said.

Despite the decision leaving “the door open for reasonable expectations of privacy,” he said, employees “need to use discretion with how and what they do on employer-provided equipment.”

For employers, Mr. Lazar recommended having clearly written policies that includes a provision preventing supervisors from altering the policy on an ad-hoc basis.

The Quon case applies only to public-sector employees. But several legal analysts have told The Washington Times that state courts handling similar cases involving the private sector undoubtedly will look to the Supreme Court’s ruling for guidance.

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