Supreme Court to hear texting privacy case

[Dos Equis]

Interesting case.  I think if you want to do the sexting thing, buy your own BlackBerry, etc. 

Supreme Court to hear texting privacy case
 By Bill Mears, CNN
April 19, 2010
 
Washington (CNN) -- The U.S. Supreme Court is scheduled Monday to hear the case of an Ontario, California, police officer who used his city-issued text-messaging pager to exchange hundreds of personal messages -- some sexually explicit. The case carries ramifications for employee privacy rights in the workplace.

At issue is how far a government employer may go to monitor the private communications of its workers when it believes the right to use such equipment is being abused.

The lawyers for Police Sgt. Jeff Quon argue that he had a "reasonable expectation" of privacy on his official wireless two-way text-messaging pager.

The court will also explore whether service providers can be held liable for providing those communications without the consent of the sender.

Courts have said that private communications -- even when delivered or transmitted through a public portal -- are generally protected from "unreasonable search and seizure." An example is handwritten letters sent in sealed envelopes through the U.S. Postal Service.

The police department has a "Computer Usage, Internet and E-mail Policy" that gives workers only limited use for personal communication.

Quon signed a statement acknowledging that "use of these tools for personal benefit is a significant violation of City of Ontario Policy" and that "users should have no expectation of privacy or confidentiality when using these resources."

Quon, a SWAT team sergeant, claimed that he was unaware the city's overall policy applied to the department and said there was an "informal policy [that] allowed officers to maintain their privacy in their text messages as long as they paid the overage charges."

The city's contract with Arch Wireless, now known as USA Mobility, allowed for a 25,000-character limit per month, per device, before overage charges kicked in.

Quon acknowledged that he exceeded the limit several times and paid the extra charges out of his personal funds, as required by his bosses.

Both sides agree that Quon's supervisor grew "tired of being a bill collector" for his text-happy officers, and the chief of police ordered a review of the pager transcripts for the two officers with the highest overage, one of whom was Quon.

Officials claimed in court that the review was done only "to determine whether the city's monthly character limit was insufficient to cover business-related messages."

But the transcripts voluntarily provided by Arch Wireless from its electronic archives revealed Quon's often-racy messages to his wife, his girlfriend and a fellow officer, prompting an internal department investigation.

A review of one month found that Quon had sent and received 456 personal messages while on duty, an average of 28 per shift, and only three were deemed work-related. A federal court judge characterized many of the messages as not "light personal communications," defined in the policy as generally acceptable, but words that were, "to say the least, sexually explicit in nature."

Quon sued the wireless company and the city for invasion of privacy.

That suit and any possible disciplinary action against the officer have been put on hold pending resolution of the larger legal questions.

A federal appeals court had ruled for Quon.

Because "the [police] department opted to review the contents of all the messages, work-related and personal, without the consent of Quon, we held that the search was excessively intrusive in light of the noninvestigatory object of the search," wrote the three-judge panel.

This case deals within the context only of government employees, and legal and technology experts are divided over its application in the private sector, where employees may enjoy less constitutional protection.

The city of Ontario is in San Bernardino County, about 37 miles east of Los Angeles.

http://www.cnn.com/2010/CRIME/04/19/scotus.text.messaging/index.html?hpt=C1

[Dos Equis]

Supreme Court rules messages sent on government-issued devices not private
BY JOAN BISKUPIC • GANNETT NEWS SERVICE • June 21, 2010

WASHINGTON — The Supreme Court ruled Thursday that a California police department's review of provocative text messages a SWAT team officer sent his wife and, separately, his mistress on a department pager did not violate the officer's privacy rights.

In a 9-0 ruling, the justices said a California police department's review of provocative texts a SWAT team officer sent his wife and, separately, his mistress on a department pager did not violate the officer's right to privacy.

The court noted that the department reviewed transcripts of messages only after the officer, Jeff Quon, had exceeded character limits and it was trying to determine whether overages resulted from work-related messaging or personal use.

The decision reversed a ruling by a San Francisco-based U.S. appeals court that said the city of Ontario breached Quon's Fourth Amendment privacy rights when officials read the messages, some of them sexually explicit.

The closely watched case marked the high court's first look at employer actions related to today's ubiquitous pagers, cellphones and other electronic devices used on the job. It tested when a government employer's monitoring of messages might violate constitutional protection against unreasonable searches. In this case, Quon's supervisor allowed him to use the department-issued pager for some personal, as well as work, communications, and the question was whether that should have led him to expect messages to remain private.

While the Fourth Amendment covers only government actions, the high court noted that some states have laws that could affect the rights of workers in private companies when messages are monitored. The court said some states require employers to notify workers when monitoring their electronic communications.

As a result, the court's assertion Thursday that searches should flow from clear workplace policies and not be "excessive in scope" could guide lower courts hearing cases from both public and private settings.

Overall, however, the court, in the opinion by Justice Anthony Kennedy, stressed it was avoiding any broad new rule in this area of evolving technologies.

"Cellphone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification," Kennedy wrote. "That might strengthen the case for an expectation of privacy."

Yet, he added that "the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cellphones or similar devices for personal matters can purchase and pay for their own."

Kennedy said the court's ruling was on settled legal grounds and linked only to the facts of Quon's case. He noted that Quon might have had a greater expectation of privacy and a more significant claim in other circumstances. Here, Kennedy said, the police department's audit of overages was reasonable.

"Even if he could assume some level of privacy would inhere in his messages," Kennedy wrote, "it would not have been reasonable for Quon to conclude that his messages were in all circumstances immune from scrutiny. Quon was told that his messages were subject to auditing."

Jim Dempsey of the Center for Democracy & Technology, which had sided with Quon, said, "The message to government employers is that the courts will continue to scrutinize employers' actions for reasonableness, so supervisors have to be careful."

John Nadolenco, a Los Angeles-based lawyer who represents employers and followed the case of Ontario v. Quon, said Kennedy's focus on the employer's policy and on its limited search could steer judges in future cases brought by public and private employees against their bosses.

http://www.livingstondaily.com/article/20100621/NEWS01/100621007