WASHINGTON, D.C. — (Mealey’s) The U.S. Supreme Court on April 19 heard oral arguments in a case concerning an employee’s expectation of privacy in text messages that were sent and received on a pager issued by his employer (City of Ontario, California, et al. v. Jeff Quon, et al., No. 08-1332, U.S. Sup.).
In a 2002 look at the text messaging costs incurred by its employees, Ontario, Calif., Police Chief Lloyd Scharf and other Police Department personnel looked at transcripts of text messages sent by its employees via pagers issued by the City of Ontario. They learned that Sgt. Jeff Quon, his wife, and two other department employees had sent and received numerous personal text messages, many of which were sexual in nature. The identified texters sued the city, the Police Department, Scharf and others in the U.S. District Court for the Central District of California in February 2003, claiming violations of the Stored Communications Act (SCA) and the Fourth Amendment to the U.S. Constitution.
The District Court ruled that Arch Wireless Operating Co. had properly released the transcripts and that although the police officers had a reasonable expectation of privacy in their messages based on the policy with regard to the pagers, the defendants were not liable for the search because they intended to uncover possible misconduct. A panel in the Ninth Circuit U.S. Court of Appeals reversed in June 2008, finding that Arch had violated the SCA and that the transcript search was unreasonable. The city, Police Department and Scharf petitioned to the high court.
The city argued before the Supreme Court that Quon “had no reasonable expectation of privacy vis-à-vis the Ontario Police Department in text messages on his department-issued pager in light of the operational realities of his workplace” including the department’s “explicit no privacy in text messages policy.” The justices questioned whether this expectation of no privacy applied regardless of the reason for the review of the texts’ content.
Appearing as amicus curiae supporting the city, the U.S. Department of Justice stated that the existence of SCA and related laws was “to fill gaps in Fourth Amendment law.” Justice Samuel Alito noted that because of the relative newness of such electronic media, “there isn’t a history” or “a well-established understanding about what is private and what isn’t private.” When Justice Anthony Kennedy suggested a “flexibility in determining what is reasonable” in such “evolving technology,” the government pointed to the department’s policy that governed its actions in the case.
Quon’s counsel countered that the city had ignored the details of the department’s policy, which had not clearly been applied to pagers from its outset. Justice Ruth Bader Ginsberg questioned whether this mattered, in light of the department’s already established policy on employee e-mails, for which they knew there was no expectation of privacy.
[Editor's Note: Full coverage will be in the April issue of Mealey’s Cyber Tech and E-Commerce Report. In the meantime, the transcript is available at www.mealeysonline.com or by calling the Customer Support Department at 1-800-833-9844. Document #24-100520-004T. For all of your legal news needs, please visit www.lexisnexis.com/mealeys.]
Download the document now:
Mealeysonline.com - Document #24-100520-004T
For more information, call editor Mark Rogers at 610-205-1129, or e-mail him at mark.rogers@lexisnexis.com.