Using work-issued electronic devices for personal messages may be commonplace, but the U.S. Supreme Court soon will rule whether employees should expect those communications to be private. In April, the Supreme Court heard Ontario v. Quon, a case addressing whether the city had the right to obtain personal messages transmitted on a city-issued pager.

When the Ontario, Calif., Police Department issued a pager to SWAT team member Jeff Quon, the city had a no-privacy policy in place, according to court briefs. One of Quon's superiors, however, told the team the pagers could be used for private messages as long as they paid for any associated charges. On multiple occasions, Quon exceeded the texting limit and paid for overages. When the city requested texting records from carrier Arch Wireless, it learned Quon had been using his pager excessively to text his wife, girlfriend and another sergeant, often with sexual content.

Quon subsequently sued the city and Arch Wireless for violating his privacy. A jury in U.S. District Court ruled against Quon, but the Ninth Circuit overturned that ruling based on Fourth Amendment privacy rights. The city then took the case to the Supreme Court, where it was still under consideration as of early June.

The Washington-based National League of Cities (NLC), National Association of Counties and U.S. Conference of Mayors, among others, have filed an amicus brief on behalf of the city. “The city was within its reasonable rights to ensure the equipment was being used for a public purpose,” says Lars Etzkorn, NLC's program director for federal relations.

Others believe the city overstepped its constitutional bounds. “We agree with the employee that he had a ‘reasonable expectation of privacy’ in his text messages, and that language is what triggers the Fourth Amendment protection,” says Gregory Nojeim, director of the Project on Freedom Security and Technology for the Washington-based Center for Democracy & Technology.

Either way, the situation perhaps could have been avoided with a more consistent policy that was reinforced, Etzkorn says. “Regardless of how the court rules, we feel the employer had a responsibility [to remind employees] of employment policies on a regular and consistent basis,” he says.

Texts of shame

In 2008, former Detroit Mayor Kwame Kilpatrick resigned after admitting to lying under oath during a whistle-blower lawsuit about having an affair with his chief of staff, Christine Beatty. The untruth was revealed in the release of romantic text messages between the two. In March, Kilpatrick filed an amended complaint in Hinds County Circuit Court in Mississippi, alleging Detroit text message provider SkyTel violated federal law when it turned his text messages over to an attorney in a related civil case.

Source: The Detroit News, “Calif. text case may affect Kilpatrick suit,” June 7, 2010.

Jennifer Grzeskowiak is a Laguna Beach, Calif.-based freelance writer.

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