2010-07-01 / Local & State

Supreme Court Backs Police Department That Read Employees’ Texts

By Warren Richey CHRISTIAN SCIENCE MONITOR

Officials in Ontario, Calif., did not violate the privacy rights of a police sergeant when they audited transcripts of his department issued pager and discovered sexuallyexplicit messages to and from his girlfriend, the U.S. Supreme Court ruled on last Thursday.

In a unanimous decision, the high court said that even if police Sgt. Jeff Quon had an expectation that his pager messages would remain private, a police department audit of his messages was nonetheless reasonable.

“Because the search was motivated by a legitimate work-related purpose, and because it was not excessive in scope, the search was reasonable,” Justice Anthony Kennedy wrote for the court.

The decision potentially opens the way for employers to examine information stored on government issued or companyissued equipment, even when that information may be considered highly personal and private by an employee.

It puts workers nationwide on notice that personal text messages, emails, and other communications undertaken in the workplace on government or company equipment may not be entitled to Fourth Amendment privacy protections.

The high court declined to clarify the scope of an employee’s own expectations of privacy in personal information stored or captured on government or companyowned devices.

Supreme Court: Search was ‘reasonable’

Kennedy said last Thursday’s decision was intended to focus narrowly on when an employer may engage in a “reasonable” search of information stored on a device. The court was not prepared, Kennedy said, to opine on the broader issue of when employees enjoy a reasonable expectation of privacy in personal information remaining on those devices.

“The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear,” Kennedy wrote.

“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 communications devices,” he said.

At issue in the case was whether Jeff Quon, a sergeant in the Ontario California Police Department’s SWAT team, was entitled to sue the police chief, police department, and the city after police audited and read personal messages Quon sent and received on his department issued pager.

Quon argued that the department allowed officers to use the equipment for private communications. He said the department established a verbal policy pledging not to view the content of personal communications provided the officer paid for any overcharges due to personal use of the pager. Quon always made those payments.

But at one point, the police official responsible for the pagers decided to end the arrangement. Without prior notice, the police chief ordered an audit of pager transcripts to assess the pager reimbursement policy.

Police officer sent sexually-explicit messages

The audit uncovered Quon’s sexually-explicit communications with his girlfriend, as well as personal communications with his estranged wife and a colleague at the police department.

Quon filed suit in federal court claiming the audit violated the verbal policy and his right to privacy. After a jury trial, Quon’s case was thrown out. But a panel of the 9th U.S. Circuit Court of Appeals reversed, agreeing with Quon that the verbal policy created an expectation of privacy.

In reversing the 9th Circuit decision, the high court said the key issue was whether the police department’s audit of Quon’s messages was reasonable.

The court concluded that police officials acted reasonably because they undertook the audit to examine whether the department’s pager contract was being administered efficiently – rather than to discover intimate details of Quon’s private life. “That the search did reveal intimate details of Quon’s life does not make it unreasonable, for under the circumstances a reasonable employer would not expect that such a review would intrude on such matters,” Kennedy wrote.

Employees should expect to be monitored

The high court said Quon was given prior warning through a policy advising employees that their email and text messages might be monitored or audited at any time. The policy allowed limited personal use of government issued computers and other equipment, but with the caveat that they might not be entirely private.

In addition, the court said as a law enforcement official, Quon should have known that his actions might be disclosed and reviewed – including a public examination of his onthe job communications.

“It is clear that Jeff Quon, as a law enforcement officer who served on a SWAT Team, should have understood that all of his work-related actions – including all of his communications on his official pager – were likely to be subject to public and legal scrutiny,” Justice John Paul Stevens wrote in a concurrence. “He therefore had only a limited expectation of privacy in relation to this particular audit of his pager messages.”

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