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Jun. 17 2010 - 12:43 pm | 690 views | 0 recommendations | 4 comments

Supreme Court hesistantly rules government worker’s text messages are not private

The Supreme Court decided a very important privacy case today, regarding a California SWAT officer who argued that the text messages sent on his work pager were entitled to privacy. The case has gained fame for two reasons — because oral argument revealed that the Supreme Justices are not very tech savvy and because journalists and Court watchers saw this case as a sign of whether we’re entitled to privacy in our communications and emails on work devices.

SWAT officer, Jeff Quon, is out of luck. The Court decided today that the police department’s search of his steamy text messages was reasonable. This has led to headlines like this one from Joan Biskupic at ABC News: High court: Texts on government gear not private.

Justice Anthony Kennedy, who wrote the Court’s opinion [PDF] in the case, hoped not to see headlines like that. He was very hesitant about the scope of today’s decision…

Justice Kennedy wrote:

Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. At present, it is uncertain how workplace norms, and the law’s treatment of them, will evolve.

That sounds like a cry for help to me. “Please, Congress, update the law!”

More hedging:

Cell phone 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. That might strengthen the case for an expectation of privacy. On the other hand, the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cell phones or similar devices for personal matters can purchase and pay for their own. And employer policies concerning commu­nications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated.

Finally, Kennedy tries to warn people not to overestimate the meaning of the Court’s decision today:

A broad holding concerning employees’ privacy expecta­tions vis-à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted. It is preferable to dispose of this case on nar­rower grounds…

Prudence coun­sels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices.

The Court’s decision essentially said that Quon did have some right to privacy in the personal messages on his work device, but that his employer did have the right to look at those messages when it had a reason (in this case, the investigation into the extraordinary number of messages being sent by police officers).

Justice Antonin Scalia, who is famously skeptical of the “right to privacy,” wrote his own concurring opinion. He was annoyed by his fellow Justices’ squeamishness in making a big statement about our electronic privacy in the workplace:

The Court’s implication… that where electronic privacy is concerned we should decide less than we otherwise would (that is, less than the principle of law necessary to resolve the case and guide private action)—or that we should hedge our bets by concocting case-specific standards or issuing opaque opinions—is in my view indefensible. The-times-they-are-a-changin’ is a feeble excuse for disregard of duty.

But the times, they are a-changin’, and the law needs to change too.


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  1. collapse expand

    I think this is fair, and I am glad the Supreme Court ruled in favor of the city.

    I think Nancy Flynn of the ePolicy Institute offers an opinion that deserves attention by suggesting that employer’s should “support written policy with mandatory employee training.”

    From what I’ve read about the case, I am pretty sure there was a privacy agreement signed by Quon with regards to use of company equipment, etc. But, nothing specifically addressing texts…

    Getting to my point… The snail speed of legislation versus technology is always going to present problems and the only solution is to make privacy policies more clear and regularly update them i.e. I think its up to employers to protect themselves on a case by case basis, I don’t think new legislation is the solution here.

  2. collapse expand


    I think that an update to the Electronic Communications Privacy Act, however necessary, is not really relevant to this ruling. The question raised is this,

    1) does an public employee, using publicly owned equipment, have a reasonable right to privacy of his or her communications?

    2) does the government which employs a public employee have reasonable cause to investigate the communications of that employee on that public public equipment?

    Even if both rights exist, which is superior? The Electronic Communications Privacy Act does not address this issue, this is a 4th Amendment question.

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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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