Reporting from Washington — An Obama administration lawyer urged the Supreme Court on Monday to rule that employees usually have no right to privacy when they send personal messages on computers, cellphones or other devices supplied by their employer.
Nationwide, most employers have adopted policies telling workers they have no right to privacy when they use computers and cellphones supplied by an employer, said Deputy Solicitor Gen. Neal Katyal.
"Thousands of employers rely on these policies," he said, so no employee can claim a "reasonable expectation of privacy" if his e-mails are read later.
Most of the justices — with the notable exception of Chief Justice John G. Roberts Jr. — seemed to agree during arguments on Monday.
Roberts noted that the employee in the case before the court was told by a supervisor he could use his text pager on his own time, so long as he paid for the extra service. "Couldn't he assume his private messages were his own business?" Roberts asked. "I think if I pay for it, it's mine."
The case of a Southern California police officer who sent sexually explicit messages to a girlfriend prompted the high court to consider for the first time whether the Constitution's protection for privacy extended to workplace e-mails and cellphone calls.
The U.S. 9th Circuit Court of Appeals broke new ground two years ago when it ruled that the city of Ontario had violated the privacy rights of Sgt. Jeff Quon when the police chief read transcripts of thousands of messages he had sent to a girlfriend. Citing the 4th Amendment's ban on "unreasonable searches" by the government, the appeals court said the police chief had no valid need to retrieve and read through Quon's personal messages.
The police chief said he was concerned that SWAT team officers were using their pagers mostly for personal use, not for police business. In defense of the city, Los Angeles lawyer Kent Richland said all employees, including Sgt. Quon, had been given the city's policy saying their pagers and computers could be monitored. "He had no reasonable expectation of privacy," Richland said.
But a lawyer for the police officer said most workers today assumed they had some personal privacy at work. "If I pick up the office phone and call my wife, I have some expectation of privacy," said Dieter Dammeier, a lawyer from Upland. "In today's society, work and private life get melded together."
If the justices rule broadly and uphold the no-privacy policies of employers, the decision could affect workers and workplaces nationwide. However, several justices hinted the court might rule more narrowly by focusing on the fact that Sgt. Quon was a police officer, since police communications are often monitored and analyzed after crimes have occurred. Deciding that a police officer has no expectation of privacy in his phone calls would not necessarily affect the rights of other employees.
The justices also debated what sounded like a perfect law-school test question. Can a university insist that all of its student clubs be open to all students, even to those who disagree with the club's basic beliefs, or does this policy violate the free-speech rights of the club?
In the real case before the court, the Christian Legal Society is arguing that the Hastings College of Law in San Francisco has violated its rights by requiring that it accept all students, including gays and lesbians. The club refused to sign the non-discrimination pledge and was denied the small amount of money that went to official student organizations at UC branches. It also sued and lost in the federal courts in California.
The Christian group won a somewhat better reception in the Supreme Court. Justice Antonin Scalia described the Hastings policy as "weird," and he questioned whether it was truly enforced. It would mean, for example, that Republicans had a right to join the campus Democrats and vice versa. "It would mean an atheist can conduct Bible classes," Scalia said. "That's crazy."
But it was unclear whether a majority would rule against the university. Several of the justices said they were hard-pressed to decide the case because it was not clear whether Hastings enforced its open-door policies on all of its clubs.