Does the Fourth Amendment of the United States Constitution protect personal text messages sent on government employer-owned pagers from government employer review? Three California special weapons and tactics (SWAT) officers have taken this question all the way to the United States Supreme Court.
The case the Supreme Court has agreed to review is City of Ontario v. Quon. The issue is whether the SWAT team officers — and recipients of their personal messages – have “expectations of privacy” in those messages — and when a government employer can circumvent those privacy rights.
In this case, the Ontario police department, like many government employers, had a “Computer Usage, Internet, and E-mail Policy.” The policy stated, among other things, that “Access to the Internet and the e-mail system is not confidential; and information produced either in hard copy or in electronic form is considered City property. As such, these systems should not be used for personal or confidential communications.”
However, an individual lieutenant had announced an informal policy of allowing some personal use of the pagers. The Lieutenant’s informal policy stated that employees who personally paid for charges beyond a 25,000-character monthly allowance would not have their text messages audited.
When the lieutenant changed his mind, withdrew the informal policy, and reviewed employee messages, transcripts of Sgt. Quon’s messages revealed that only 57 out of more than 450 messages were work-related. The rest were personal. Some were sexually explicit.
Sergeant Quon and recipients of his text messages (including his girlfriend, wife, and a fellow Sergeant) sued the City. They argued the review of their personal text messages violated their Fourth Amendment right against unreasonable searches and seizures. The U.S. Court of Appeals for the Ninth Circuit agreed. The appeals court held that the existence of the informal policy gave the officers a “reasonable expectation of privacy” in their text messages. Reading the messages, according to the decision, constituted a violation of the officers’ constitutional rights. The appeals court found that friends of Quon who sent messages to Quon’s SWAT team pager retained privacy rights in their messages as well. The appeals court concluded that the police department could have used “less intrusive methods” of reviewing text-messages transmitted by SWAT team members on SWAT pagers. While this case focuses on text messaging in government workplaces, the coming decision will certainly provide a window into the Supreme Court’s more general views on Internet privacy. We will eagerly await the Court’s latest interpretation of what privacy rights mean in our highly connected world.