Racy text messages from a SWAT team sergeant in California are at the heart of a legal battle that could have a far-reaching impact on employee privacy. The U.S. Supreme Court said Monday it will hear an appeal by the city of Ontario of a lower court's ruling that the officer's rights and those of three other plaintiffs were violated when supervisors read their messages on devices owned by the police department.
The case is sure to be closely watched by companies that increasingly provide network devices for internal communications that can accumulate tens of thousands of daily messages.
"The facts of the case only involve public employees, but it is possible the court's ruling will have implications for private companies, too," said Christopher Wolf, co-chair of the Future of Privacy Forum, a Washington-based public policy group.
In its defense, Ontario's lawyers argued that "It is not objectively reasonable to expect privacy in a message sent to someone else's workplace pager, let alone a police officer's department-used pager."
But the Ninth Circuit Court of Appeals in San Francisco disagreed, ruling last year that because of a policy stating that officers had the right to pay for overages beyond their 25,000-character monthly text limit, it was reasonable to assume private messaging was allowed. That policy said messages would not be scrutinized if the overages were paid.
The defense attorneys had argued that the lieutenant who came up with that accommodation didn't have the authority to set policy, and the guidelines stated that except for "light personal communication," the devices were for official use only. The rules also warned that messages were subject to inspection without notice.
The case began in October 2004 when Sgt. Jeff Quon, his wife, another officer, and a dispatcher sued the city after the department received transcripts of their messages, some of which were sexually explicit, from the service provider, Arch Wireless, now a division of USA Mobility.
Ontario's police chief, who sought the messages because Quon had often exceeded his monthly limit, found explicit texts to Quon's wife, his girlfriend, and another officer, according to court papers.
A Central District court ruled in Quon's favor and the Ninth Circuit upheld that ruling, saying the officer could have been given a chance to redact his messages. The judges acknowledged that "the recently minted standard of electronic communication via e-mails, text messages, and other means opens a new frontier in Fourth Amendment jurisprudence that has been little explored."
That means the nation's top court will decide as soon as June whether an employee forfeits his or her Fourth Amendment right to privacy when using devices or systems meant for work.
Potential Impact on Governments
In ruling for the plaintiff, the appeals court said Arch Wireless violated the federal Stored Communication Act, passed in 1986 as part of the Electronic Communication Privacy Act. The act governs the disclosure of information held by third parties such as Internet service providers.
"The outcome will likely affect the ability of service providers to reveal messages to public employers under the Stored Communications Act," Wolf said.
A high-court decision to uphold the appellate court could play havoc with the ability of municipalities to comply with Freedom of Information Law requests and pose a burden on them if they have to sort through e-mails and texts to exclude or redact messages that could violate employee privacy.
The League of California Cities and the California State Association for Counties filed a brief urging the high court to take the case.
Wolf believes the Supreme Court took the case to protect the interests of government.
"They want to confirm that public employers have a right to monitor the online activities of employees using public equipment," said Wolf. "The [ruling] of the Ninth Circuit was really a stretch, looking at the officers paying for excess minutes for a service that was paid for by the government entity. It would be a lot easier if people use their own equipment and accounts for personal communications."