Badges - Supreme Court reviews privacy of texts sent from department phones
- From: "Thomason, Ronald" <Ronald.Thomason@xxxxxxxxxx>
- To: "'badges@xxxxxxxxxxxxx'" <badges@xxxxxxxxxxxxx>
- Date: Thu, 22 Apr 2010 07:22:13 -0700
Supreme Court reviews privacy of texts sent from department phones
A California officer sued when records from his department-issued pager were
submitted to internal affairs
WASHINGTON, D.C. - We've all probably done it -- whether it was texting about
dinner plans on a company cell phone or updating friends about a vacation via
company e-mail.
But can a company look at your personal exchanges on its electronic devices?
On Monday, the U.S. Supreme Court heard arguments in a case that questions
whether a California city violated a public employee's rights by reading
sexually explicit text messages on an electronic device owned by the Police
Department. A decision has not been made.
Although the case involved a police officer, some legal experts said the ruling
could have broad implications on how public and private employees can be
monitored.
"What makes this case so interesting and important is that it involves the way
many employees communicate, which is on work e-mail and work phones," said
Suzanne Goldberg, a law professor at Columbia University who specializes in
employment and privacy issues.
In the digital era, employees often are expected to be in constant contact with
their managers. The use of cell phones and mobile internet service has
skyrocketed over the last decade, and some of the growth can be attributed to
companies giving cell phones and smartphones to their employees, said Lee
Rainie, director of the Pew Internet & American Life Project.
A Pew study found in January that 80 percent of American adults have cell
phones and 30 percent of them access the internet on their phones. In 2000, 50
percent of American adults used cell phones, according to a Gallup Poll, and
phones rarely supported access to the web.
As the electronic leash grows tighter on employees, it is becoming increasingly
difficult to separate home and work communications, Rainie said. Employees may
overlook the fact that shopping for personal items on a work computer or
perusing Facebook on a company mobile phone could be subject to scrutiny,
especially by private companies.
"In a boundary-less environment, when workers are toggling back and forth
between work and personal use, they don't realize their boss has the right to
go back through their browser or their text messaging trail," Rainie said.
In the case before the Supreme Court, lawyers for Sgt. Jeff Quon argue he had a
"reasonable expectation" of privacy on his official wireless two-way
text-messaging pager. The texting device was owned by the Ontario, California,
Police Department.
Quon's supervisors examined his private text messages with his wife and
girlfriend without his permission in 2002, according to court documents. His
supervisors said they looked at his text messages after noticing he was going
over the monthly allotted limit.
They discovered racy text messages on Quon's pager.
Quon said he believed he was allowed to use the device for personal use because
company policy was unclear.
Six years later, the case made its way into the 9th U.S. Circuit Court of
Appeals in San Francisco, California, which ruled Quon's constitutional rights
had been violated. A panel of judges ruled that he was protected from illegal
searches and seizures under the Fourth Amendment.
Gregory T. Nojeim, senior council for the Center for Democracy & Technology,
said he believes the Supreme Court will rule narrowly on the specifics of the
Quon case. He doesn't think the court will issue a wide ruling that will affect
all employees. Still, he warned private employees to be wary of posting private
information on company-owned electronic devices.
While the Fourth Amendment may arguably protect Quon, a public employee, the
situation is different in the private sector. A handful of human resource
experts said private employees have less protection. More than 28 percent of
employers fired a worker for e-mail misuse in 2007, compared to 14 percent in
2001, according to the American Management Association.
Many private companies have explicit polices that deal with how employees can
use company computers, phones and other electronic devices, said Bill Anthony,
a human resources professor at Florida State University. Companies began
issuing such policies in the late 1990s when internet use became widespread in
the workplace, Anthony said.
The Ontario 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."
But attorneys for Quon, a SWAT team sergeant, said the rules did not pertain
specifically to text messages. Quon said he was unaware the city's overall
policy applied to the department.
Also, Quon 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." Quon had been paying the overage charges under an informal agreement
with one of his managers.
Legal experts said the Supreme Court case will push some companies to write
clearer policies about the use of technology. The case could also spur more
efforts to educate employees about the consequences of sharing personal
information on work e-mail or phones.
"I also think this case says to employers, regardless of how it comes down, it
is very important when you have a policy to keep that policy updated and make
sure the policy is applied consistently," said Patricia Trainor, an employment
attorney and legal editor at Business and Legal Resources, a human resources
consulting company in Connecticut.
Employers should protect themselves by keeping their personal life out of work
communication, said several attorneys and human resource experts.
"If your employer has anything to do with giving [you] your phone, whether it's
paying for it or not, you're safe to assume that the text on it is not
private," said Jeffrey Toobin, CNN's senior legal analyst.
"If you want privacy, buy your own phone."
Ron Thomason
District Attorney's Office
Regional Justice Center
Las Vegas, Clark County, Nevada
Team L-2
Ronald.Thomason@xxxxxxxxxx
Office (702) 671-0912
Cell (702) 592-2768
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