Tuesday, December 15, 2009

Supreme Court to Take Texting Case, LOL

The Supreme Court accepted review on CITY OF ONTARIO V. QUON. The issue involves whether the City of Ontario police department violated the constitutional privacy rights of an employee when it inspected personal text messages sent and received on a government pager. A little background is useful...

The City of Ontario had issued two-way pagers to its SWAT team. The officers were told they were responsible for charges in excess of 25,000 characters a month. The City had a formal policy reserving the right to monitor “network activity including e-mail and Internet use,” allowing “light personal communications” by employees but cautioning that they “should have no expectation of privacy.” It did not directly address text messages.

Under an informal policy adopted by a police lieutenant, those who paid the excess charges themselves would not have their messages inspected. The lieutenant eventually changed his mind and ordered transcripts of messages sent and received by Sgt. Quon. In one month in 2002, only 57 of more than 450 of those messages were related to official business. Many of the messages were sexually explicit in nature.

Sergeant Quon and some of the people with whom he messaged sued, saying their Fourth Amendment rights had been violated. The United States Court of Appeals for the Ninth Circuit said the department’s formal policy had been overridden by the “operational reality” of the lieutenant’s informal policy. The Ninth Circuit Court of Appeals held that the Fourth Amendment protects the contents of the text messages even if the address (in this case the telephone number) is not protected. See Ninth Circuit Blog for analysis of the Ninth Circuit opinion.

Now, the Supreme Court will decide whether the officers had a reasonable expectation of privacy with the work-issued pager; whether the police department could have found a less intrusive way to review the messages; and whether the individuals who sent the messages to a police-issued pager have a reasonable expectation of privacy that the message would be free from review by the employer. The case has large ramifications for anyone interested in the Fourth Amendment and privacy issues. Many businesses, incjavascript:void(0)luding government employers, issue cell phones, pagers, and computers to their employees so the holding could affect many people. For more coverage of this issue, see the New York Times article and the Scotus Blog.

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