The U.S. Supreme Court ruled unanimously on Thursday that a California police department did not violate the constitutional right to privacy when it audited text messages on a pager the city issued to an employee. City of Ontario v. Quon was an early case that may have implications for the Fourth Amendment Rights of public employees in the digital age.
Justice Anthony M. Kennedy said the court must proceed with care when considering the concept of privacy expectations in communications made on electronic equipment owned by a government employer.
"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," Kennedy wrote in the court's opinion. "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."
Curtailing Workplace Privacy?
At issue was the use of text pagers issued to officers by the city police department. When Sgt. Jeff Quon consistently went over the allowed limit on messages, his supervisors obtained stored text messages from the service provider and found that many were personal, not work-related. Quon claimed the search violated the Fourth Amendment, but the court did not agree.
According to Jim Dempsey, vice president for public policy at the Center for Democracy & Technology, what is significant about the court's opinion is what did not happen.
"Faced with an opportunity to curtail workplace privacy -- or electronic privacy generally -- the court noted, applying a 1987 precedent, that government employees generally retain their Fourth Amendment privacy rights, and it assumed that government employees may have a reasonable expectation of privacy even in communications they send during work hours on employer-issued devices," Dempsey said.
"The case could have had very far-reaching implications because of the way in which work-related and personal communications have become so interwoven, in both the government and the private sectors, as employers expect workers to be always available by cell phone, text and e-mail. The court recognized this trend, but declined to set any new rules."
Fourth Amendment in the Digital Age
Mark Rotenberg, executive director of the Electronic Privacy Information Center, called the high court's decision disappointing. As he sees it, the mistake in the case is clear: The court did not give sufficient weight to the fact that Quon was using the device for personal communication -- and was paying for the device.
"The court placed a great deal of emphasis on the fact that the pager had been issued by the state agency, which is true, but I don't think that answered the question as to whether the search was reasonable," Rotenberg said. "The court agreed that there was an expectation of privacy, but it also concluded that the search conducted for the purposes of auditing was reasonable. We think there was a more narrow search that would have fulfilled the agency's purpose."
Rotenberg said there's an important takeaway from the case: The Supreme Court will likely confront electronic-privacy issues increasingly in the years ahead.
"Applying the Fourth Amendment to new technologies may sometimes be difficult, but when it is necessary to decide a case, we have no choice," Justice Antonin Scalia wrote in a concurring opinion. "The-times-they-are-a-changin' is a feeble excuse for disregard of duty."
Posted: 2010-06-20 @ 5:15pm PT
It was Gov't issued, the Gov't was paying for it. If it were personal, yes there is a privacy issue, but it was FOUO!!! GTFO with this!