Reporting from Washington — The Supreme Court is expected to decide as early as today whether to hear an appeal of a case in which employees won a constitutional right to privacy in their text messages, even when the messages were sexually explicit comments to co-workers.
Last year, the U.S. 9th Circuit Court of Appeals ruled that the 4th Amendment and a federal electronic communications law protect the privacy rights of workers who send text messages on devices provided by their employers. The appeals court ruled in favor of Ontario police Sgt. Jeff Quon and three fellow officers who sued after the police chief read their messages.
"The Quon case is very important. It came down at a moment when there was virtually no protection for employee privacy," said Lewis Maltby, president of the National Workrights Institute in Princeton, N.J. "If it stands, it would mean employees for the first time could communicate at work with privacy."
The San Bernardino County city and its wireless service provider filed the appeal. Both were held liable for their part in retrieving and reviewing the messages sent by Quon and his co-workers on text pagers.
A Los Angeles lawyer who appealed on behalf of the city said the Circuit Court ruling sets a "very troublesome" precedent for public agencies and private employers. "The city had an explicit policy that employees had no expectation of privacy" when they were using its computers, cellphones or pagers, said attorney Kent L. Richland. "Most government agencies have the same policy. I think it's conceivable the 9th Circuit's decision could be read to say there is a privacy interest in e-mail communications as well."
Quon and the other officers in Ontario had signed a statement declaring "users should have no expectation of privacy or confidentiality" when using computers or other devices furnished by the city. But shortly after text pagers were distributed to members of the SWAT team, the officers were told by a supervisor they could use them to send messages, so long as they paid out of their pocket for messages that exceeded 25,000 characters a month. It was understood that some of these messages would be personal and unrelated to police work.
When Police Chief Lloyd Scharf learned that some officers were regularly exceeding the 25,000 characters limit, he asked for an audit "to determine if someone was wasting . . . city time not doing work when they should be."
