Sexting case outcome changes the rules on workplace privacy

Private messages may be open to examination

Admit it – at some time or other, and likely every day, you’ve made a personal call at work. Or sent a personal e-mail, or text messages. But be warned: according to a unanimous ruling issued Thursday by the Supreme Court, government employers are entitled to review communications on your company-owned cell phone and computer as long as there is a legitimate work-related purpose.

While the court opinion is cautious and written to apply to cases where the employer is paying for an employee’s private communications, it could have broader privacy implications.

The ruling stems from a “sexting” case that began in 2001. An Ontario, Calif., SWAT sergeant, Jeff Quon, who was sending what seemed like an excessive number of text messages on his department-issued two-way pager.

The city’s contract put a limit on messages, so Quon’s were costing some money. But according to PCMag, he wasn’t the only one going over the limit and incurring fees. The department had originally worked out a deal where officers could pay the bill for excessive messages, but after a year or so, it became unwieldy for the officials charged with collecting the money. The department launched an investigation aimed at finding out whether officers were exceeding the limit with work-related messages, which would have suggested a need to negotiate a higher limit with the wireless carrier.

Instead, officials found that Quon was sending an average of 28 messages per shift, only three of which were work-related. The personal messages included a large number of sexually explicit ones to his wife and to a mistress. To complicate matters, Quon’s wife and lover both also worked for the Ontario police department.


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Supreme Court opinion (PDF)


Quon, in turn, sued the police department for violating his privacy and his Fourth Amendment rights. The Electronic Privacy Information Center had filed a friend-of-the-court brief on his behalf, arguing that the search uncovered communications unrelated to the purpose of the search and should therefore be held to be unreasonable. EPIC had not issued a further statement on the ruling by late Friday.

Justice Anthony M. Kennedy, writing for the court, noted that the city “had a legitimate interest in ensuring that employees were not being forced to pay out of their own pockets for work-related expenses, or on the other hand that the city was not paying for extensive personal communications.”

However, Kennedy said the ruling was narrow and tied to the facts; government employees still have some privacy rights under the Fourth Amendment. Additionally, Kennedy noted that the court was uncomfortable fashioning comprehensive legal rules, given the pace of technological and cultural change.

“The court must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer,” he wrote in a part of the opinion joined by every member of the court except Justice Antonin Scalia.

“Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification. On the other hand, the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cell phones or similar devices for personal matters can purchase and pay for their own,” he said.

The ruling reversed a decision by The United States Court of Appeals for the Ninth Circuit, in San Francisco, which that there were less intrusive ways to conduct the audit.

The decision did not address the privacy rights of people employed by private companies.

About the Author

Kathleen Hickey is a freelance writer for GCN.

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