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Court will rule on privacy of text messages sent on employer-owned devices

The police department in Ontario, Calif., was sued after the chief read sexually explicit texts sent by officers. An appeals court sided with officers, saying they had an expectation of privacy.

December 14, 2009|By David G. Savage

Reporting from Washington — The Supreme Court said today it would rule for the first time on whether employees have a right to privacy when they send text messages on electronic devices supplied by their employers.

The justices agreed to hear an appeal from the police department in Ontario, Calif., that was successfully sued by Sgt. Jeff Quon and three other officers after their text messages -- some of which were sexually explicit -- were read by the police chief.

Last year, the U.S. 9th Circuit Court of Appeals broke new ground by ruling that the police officers had a "reasonable expectation of privacy" in their text messages. The officers had been led to believe by a supervisor that the devices were also for personal use, the appeals court said.

A Supreme Court ruling on the issue, due by June, could set new rules for the workplace at a time when most employees use computers, cellphones or texting devices as part of their job. The 9th Circuit's opinion was the first from a federal appeals court to hold that the Constitution protected the privacy rights of workers who were using electronic devices supplied by their employer.

City officials in Ontario said they had told their employees, including the police officers, that they did not have a guarantee of privacy when using city-supplied texting devices. The police chief said the devices were to be used for official police business, and he asked to see the messages to determine whether the devices were being used for mostly personal message. The Arch Wireless Co., which provided the texting service, turned over transcripts to the chief.

Quon and three other officers sued after they learned their messages had been read. Last year, the appeals court ruled that the police chief's inspection violated the officers' rights under the 4th Amendment. It also found the wireless company violated the federal Electronic Communications Privacy Act when it turned over the messages without the consent of Quon.

The case has drawn wide interest among privacy advocates. Until the 9th Circuit ruling, most judges had said employers who provide computers, cellphones or texting devices for their workers were entitled to control how those devices were used. Most employers, including the city of Ontario, had a formal policy that said employees did not have a privacy right when they were sending e-mails or other messages.

The city told employees it "reserves the right to monitor and log all network activity including e-mail and Internet use, with or without notice."

In their appeal, lawyers for Ontario and its police department said the 9th Circuit's ruling, if upheld, would affect public employers across the nation. The part of its opinion involving wireless service providers also could affect private companies.

"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," the city argued.

The high court said it would hear arguments in the case, City of Ontario vs. Quon, in the spring and issue a decision by the end of June.

david.savage@latimes.com

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