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Apr. 19 2010 - 5:23 pm | 12,802 views | 0 recommendations | 37 comments

The Supreme Court talks about an employee’s right to private sexting

WASHINGTON - SEPTEMBER 29:  Members of the US ...

Not a tech-savvy crew (Image by Getty Images via Daylife)

Today, the Supreme Court heard the case of the California SWAT officer who sued the city of Ontario for violation of his privacy after his employer reviewed the messages he sent on his work-issued pager. He had been using the pager for personal text messages — notably for steamy SMSes to his estranged wife and to his girlfriend with whom he worked. (More background here.)

At first glance, the case might seem like an easy one. Of course the police department has the right to look at messages sent on an officer’s work pager, right?

But then think about it in your own context. Do you assume that your employer is reviewing every text you send from your work phone? Is it fair for your employer to look at every email that goes out from your work computer? Does it matter whether it’s going from your work account or your personal gmail account?

This case is made more complicated because there were oral agreements between the SWAT officer and his lieutenant that the messages would remain private as long as he paid any overage fees for messages exceeding those allowed by his work plan. He regularly exceeded those limits and paid up.

We won’t know how the Court will rule until it issues its opinion. Orin Kerr at Volokh Conspiracy has pointed out that Chief Justice John Roberts was the strongest advocate of SWAT officer Jeff Quon’s right to privacy (surprisingly, as Roberts is not usually on the same side of a case as the ACLU). But the Associated Press thinks that the court will rule against Quon and the right to privacy when it comes to racy text messages at work.

I was also at the Supreme Court today. It wasn’t clear to me from the Justices’ questions that they would rule in favor of the government position. But even if they do, the opinion will be limited in its applicability to other employees, since Quon works for the government and the law differs somewhat for public employees. Actually, they usually have a little more privacy thanks to the Fourth Amendment which protects against unreasonable search and seizure by government entities.

Private employees are usually subject to the policies at their workplace. As the LA Times points out, deputy solicitor general Neal Katyal was there arguing on behalf of the Obama administration 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.

Roberts hopped in and pointed out that oftentimes these policies are like the fine print on a parking garage ticket — “It doesn’t apply because nobody reads it.”

What was most interesting to me in hearing the Justices and the lawyers debate the case was the lack of familiarity with technology issues. Based on their ages alone, it’s not surprising that many of the Justices are not technophiles (John Paul Stevens, 89; Antonin Scalia, 73; Anthony Kennedy, 73; Ruth Bader Ginsburg, 76; Stephen Breyer, 71), but the law has also not caught up with the modern age. The New York Times touched on this problem earlier this month in an editorial, “Dial-Up Law in a Broadband World.”

Privacy is central to American law. And in 1986, Congress applied that principle to electronic communications by setting limits on law enforcement access to Internet and wireless technologies. It was a laudable law at the time, but cellphones were still oddities, the Internet was mostly a way for academics and researchers to exchange data and the World Wide Web that is an everyday part of most Americans’ lives did not exist.

The law is no longer comprehensive enough to cover the many kinds of intrusions made possible by the advances of the past 24 years. In the absence of strong federal law, the courts have been adrift on many important Internet privacy issues. The law is not clear on when search warrants are required for the government to read stored e-mail, what legal standards apply to GPS technology that tracks people’s whereabouts in real time and other critical questions.

via Editorial – Dial-Up Law in a Broadband World – NYTimes.com.

Quon’s lawyer didn’t know whether deleting a message on his pager would erase the message from the wireless company’s transcript (My guess is that it would not.) There was a lot of talk about how you could review Quon’s messages to see how many were for work-purposes and how many were personal, without actually looking at the messages themselves. The obvious solution to me was to sort them by number dialed, and then figure out which were work numbers and which were personal numbers, but that solution was not raised. Instead, Quon’s lawyer suggested that the transcripts could have been printed out and that Quon could have redacted the personal stuff.

And there was a lot of talk about how exactly text messaging works:

“I thought, you know, you push a button; it goes right to the other thing,” Roberts said.

“You mean it doesn’t go right to the other thing?” Scalia said.

via The Associated Press: Court takes up public employees’ privacy case.

One of the main arguments that Quon’s lawyer kept making is that sending a text message is like sending a letter. When you send a letter, the government is not supposed to seize and review it at the Post Office. He said it should be the same case for a wireless provider — that the police department should not have gotten the transcript from them. Obviously, we need to update the law to address this. Given the Post Office budget problems, who knows if it will even be around to use as a reference in a few more years?

In the meantime, think hard about what you send out from your work devices. Best send the racy stuff from your own personal smartphone, or by snail mail.

Justices hears case of Ontario police officer who sent risque messages [Los Angeles Times]
Thoughts on the Oral Argument in City of Ontario v. Quon [Volokh Conspiracy]
Court takes up public employees’ privacy case [Associated Press]


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  1. collapse expand

    It is somewhat dismaying that the justices being asked to rule on technological issues are under the impression that these technologies work by magic.

  2. collapse expand

    Ms. Hill,

    Dodging the legal issues here (I think), what was to stop Mr. Quon from using his own pager? As a policeman, he could easily afford one. Why use your company’s pager for this sort of thing? Isn’t that just stupid?

  3. collapse expand

    Actually, they usually have a little more privacy thanks to the Fourth Amendment which protects against unreasonable search and seizure by government entities.

    Too bad civilians (that’s what SWATs call people outside law enforcement) don’t enjoy the same protections.

    I’m interested in why you omitted the sheer volume of sex-texts and the judge that heard the original case’s take on the contents.

    p.s Roberts has a massive hard-on for cops. search for “John Roberts opinion- tougher than a three dollar steak.”

  4. collapse expand

    Doesn’t his verbal agreement to use the pager for personal reasons, along with the ensuing paper trail of paid-for overages, constitute a rental agreement between the officer and his employer for private use of the device? He is, instead of getting his own personal pager, renting use of his work pager from his employer. I think this agreement makes the device his to use as he sees fit for private purposes.

    Love the quotes by the justices. Do you think any of them even have cell phones. I think there is one called Jitterbug for seniors with just a few buttons on it? Once they get started perhaps the court will come to a grinding halt as the justices surf the web and Tweet all day instead of hearing cases?

  5. collapse expand

    I think that letter-opening question is a valid one. If I send a personal letter out with my company’s mail, do they have a valid right to inspect it? I think they are Federally prohibited from doing so, but at what moment does it become “mail?” When I put it in the envelope? When I affix a stamp? Does it matter whom my employer is? Clearly, what ever standard is applied to postal mail needs to be applied to email, SMS, et c. Many–most?–corporations reserve the right to screen emails and phone calls, I know mine does. But I wonder, can they?

    Maybe by asking questions about printing out texts, the justices were, in a roundabout way, addressing (ha!) that issue.

  6. collapse expand

    Only a stupid city government would have enough lazy asses sitting around with time on their hands to go thru everyone’s messages…..unless they were investigating the guy for something else

  7. collapse expand

    It seems to me like it is the columnist who is making assumptions, and the Court’s questions are quite insightful. This column, for example, conflates pager traffic with SMS. These are not the same thing. Was the SWAT officer using a pager or a phone to send these messages? This is an important point of fact.

    Scalia’s question is relevant because some messaging systems are in fact peer-to-peer without any storage on the part of the wireless operator or anyone else. Mobitex, although now disused, worked this way in some respects. So there are systems in which you “push a button and it goes right to the other thing.”

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    I am a writer, reporter, editor and blogger. I'm an editor at Above The Law, where I blog about lawyers, judges, law firms and the legal industry. Here at True/Slant, I write about our changing notions of privacy.

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