Sexting case chills workplace privacy

And readers like it that way

Some people railed against the perceived loss of privacy when the Supreme Court recently ruled that employers have the right to examine the content of messages sent on employer-issued equipment. But many Federal Computer Week readers appeared to agree with the court's ruling.

The case at issue involved a police officer from Ontario, Calif., who was sending racy text messages to both his wife and mistress using a department-issued pager. This was a few years before smart phones were available. According to a report on PCMag.com, police department officials audited the messages because at least two officers were going above the maximum number of messages included in their flat-rate contract, and after the activity continued for several months, they wanted to see whether the overages came from work-related messages or personal notes.

Department officials reasoned that if officers were frequently going above the cap for work-related communications and incurring extra charges — which, at the time, the officers were paying for out of their own pockets — the department needed a more generous agreement. Finding the risqué messages was unexpected.

In comments posted to stories on FCW.com and sister site GCN.com, readers took a firm stand in support of the court ruling. A reader in Nashville, Tenn., put it this way: “I was telling co-workers as early as 1998 that there should be no expectation of privacy while communicating on any employer-owned equipment.… If it truly must be private, use your own equipment and communication service.… Employee communications on company equipment and services should be considered as if you were putting it on a billboard on Main Street.”

We wonder if part of the widespread agreement with the ruling has to do with the steamy nature of the private messages involved. If officials had instead uncovered a series of messages between the officer and his physician about the ominous results of a biopsy, for example, would people still insist he has no right to privacy?

Many news reports are using headlines such as “Court rules no sexting at work.” But the sexual content of the messages is irrelevant. What the court ruling means is that any communication via an employer-issued device is subject to exposure — whether it’s about your health, your children, marital difficulties, a financial struggle or anything else people prefer to keep private.

Justice Anthony Kennedy, in writing the opinion for the unanimous court, cautioned that the ruling should be taken narrowly. “Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices,” he wrote. “Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior.”

According to a report on the Huffington Post, some of the justices seemed confused by the technical aspects of the case. During oral arguments, Justice Antonin Scalia reportedly asked whether the officer had the ability to print out the text exchanges “and send them to his buddies.”

 

About the Author

Technology journalist Michael Hardy is a former FCW editor.

Reader comments

Thu, Jul 1, 2010 Steve Arlington, VA

Your article on this Supreme Court ruling, like other initial coverage by CNN, the Washington Post, and other major media outlets, mis-characterizes the ruling as making a determination about expectations of privacy in the workplace. The Court ruled only that the employer in this case - a city police department and therefor a government agency - did not violate the 4th Amendment's protection against unreasonable search when it looked a the contents of personal text messages sent on government-owned pagers. The court made no determination on reasonable expectations of privacy, and in fact assumed for the purposes of making its ruling that the officer in question DID have a reasonable expectation of privacy with respect to his text messages, but nonetheless found the search legal. Outside the government sector, there is even less to take away from this case, as 4th Amendment protections to not apply to employees of non-government organizations. I agree with the Nashville reader you quoted that in general workers should not have any expectation of privacy while using employer-owned equipment, but the Court did not rule on this matter one way or the other, and if anything Justice Kennedy's majority opinion seemed to support the idea that government employers could not assert unlimited rights to monitor employee communications.

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