CA Police Agency Cleared in Page Text Message Audit

June 17, 2010 (Thursday – U.S. Supreme Court justices on Thursday ruled a California police department was within its rights to audit the text messages on a city-issued pager given to an employee.

Writing for the high court in City of Ontario v. Quon, Justice Anthony M. Kennedy asserted that the city of Ontario police department did not violate Sergeant Jeff Quon’s constitutional privacy rights through the text message audit. Quon used the pager to send and receive messages that were, in the words of a trial court judge hearing the resulting lawsuit, “to say the least, sexually explicit in nature.”

While Kennedy insisted the court did not intend a broadly sweeping legal holding and was merely reacting to the facts at hand, the ruling represented an early attempt to define employees’ rights in the digital era.

“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,” wrote Kennedy. “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 expectation of their employees, especially to the extent that such policies are clearly communicated. “

Declaring that the city’s pager search was not unduly intrusive, Kennedy said officials had a “legitimate work-related purpose” for the audit. The city “had a legitimate interest in ensuring that employees were not being forced to pay out of their own pockets for work-related expenses, or on the other hand that the city was not paying for extensive personal communications,” Kennedy wrote.

The decision did not address the privacy rights of people employed by private companies.

According to the decision, a city policy on computer, Internet and e-mail use made clear that the city had the right to monitor such communications. The policy allowed “light personal communications” but said “users should have no expectation of privacy or confidentiality.”

Quon later argued that an informal policy instituted by a police lieutenant overrode the formal one, even if the formal one did apply to pager messages. The lieutenant for a time indicated that the pagers could be used for personal messages so long as the employees responsible paid for charges beyond a 25,000-character limit. The lieutenant eventually changed his mind, and the department  audited the messages Quon had sent during work hours for two months.

The review found Quon sent or received 456 messages in a month, of which only 57 were work-related.  Quon sued the department, saying his Fourth Amendment rights had been violated.

A jury found that the city had a good work-related reason to audit the messages — to see if the character limit made sense as a business matter. Given that jury finding, the trial judge ruled that the search had not violated the Fourth Amendment.  The 9th U.S. Circuit Court of Appeals threw out the that decision saying there would have been less intrusive ways to conduct the audit and the case moved on to the high court (see Supreme Court to Consider Workers’ Online Privacy).

The Supreme court ruling is at