The Supreme Court agreed on Monday to decide whether a police department violated the constitutional privacy rights of an employee when it inspected personal text messages sent and received on a government pager.
The case opens “a new frontier in Fourth Amendment jurisprudence,” according to a three-judge panel of an appeals court that ruled in favor of the employee, a police sergeant on the Ontario, Calif., SWAT team.
Orin S. Kerr, an authority on the Fourth Amendment at George Washington University’s law school, said the case was simultaneously significant and idiosyncratic. “This is the first case on Fourth Amendment protection in data networks,” Mr. Kerr said. But the case arose from unusual circumstances, making it fairly likely that the eventual Supreme Court ruling will be narrow.
The Supreme Court has given public employers wide latitude to search their employees’ offices and files. But it has also said that the Fourth Amendment, which forbids unreasonable government searches, has a role to play in any analysis of that latitude.
The Ontario Police Department had a formal policy reserving the right to monitor “network activity including e-mail and Internet use,” allowing “light personal communications” by employees but cautioning that they “should have no expectation of privacy.” It did not directly address text messages.
Members of the department’s SWAT team were given pagers and told they were responsible for charges in excess of 25,000 characters a month. Under an informal policy adopted by a police lieutenant, those who paid the excess charges themselves would not have their messages inspected.
The lieutenant eventually changed his mind and ordered transcripts of messages sent and received by Sgt. Jeff Quon. In one month in 2002, only 57 of more than 450 of those messages were related to official business. According to the trial judge, many of the messages “were, to say the least, sexually explicit in nature.”
Sergeant Quon and some of the people with whom he messaged sued, saying their Fourth Amendment rights had been violated. Judge Kim McLane Wardlaw, writing for a three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, said the department’s formal policy had been overridden by the “operational reality” of the lieutenant’s informal policy.
Dissenting from the full Ninth Circuit’s decision not to rehear the case, Judge Sandra S. Ikuta said the panel had violated “the dictates of reason and common sense” and had hobbled “government employers from managing their work forces.”
The City of Ontario and its police department, in asking the Supreme Court to hear the case, said “a lower-level supervisor’s informal arrangement” should not be allowed to trump “the employer’s explicit no-privacy policy.”
“It is not objectively reasonable to expect privacy in a message sent to someone else’s workplace pager,” the brief said, “let alone to a police officer’s department-issued pager.”
The Supreme Court’s decision, the brief went on, will affect “a seemingly never-ending stream of new technologies.”
Though the legal issue in the case, City of Ontario v. Quon, No. 08-1332, concerns only text messaging in government workplaces, the Supreme Court’s decision may provide hints about its attitude toward privacy in the Internet era more generally.
The larger question, Judge Stephen G. Larson of the Federal District Court in Riverside, Calif., wrote in declining to dismiss Sergeant Quon’s case before trial, is this: “What are the legal boundaries of an employee’s privacy in this interconnected, electronic-communication age, one in which thoughts and ideas that would have been spoken personally and privately in ages past are now instantly text-messaged to friend and family via hand-held, computer-assisted electronic devices?”
The comment about "stream of new technologies" is very valid. I remember the day when Pagers ONLY showed you the phone number to call back.
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