Tuesday, April 20, 2010

Text Messaging Case Update

On Monday, April 19, 2010, the U.S. Supreme Court heard arguments in the Quon case that was the subject of my post on December 14, 2009. As was discussed, that case questions whether the City of Ontario violated a public employee's rights by reading sexually explicit text messages on an electronic device owned by the Police Department.

Lawyers for Sgt. Jeff Quon have argued that he had a "reasonable expectation" of privacy on his official wireless two-way text-messaging pager, even thoguh the texting device was owned by the Ontario, California, Police Department. Quon's supervisors examined his private text messages with his wife and girlfriend without his permission in 2002, according to court documents. His supervisors said they looked at his text messages after noticing he was going over the monthly allotted limit, and had commissioned an audit to determine if he was using the device for personal use. In that audit, the city discovered the racy text messages on Quon's pager.

Though the City had a policy that prohibited personal use of City owned technology, Quon said he believed he was allowed to use the device for personal use because company policy was unclear. This argument was based on his claims that the personal use policy was never enforced and thus Quon said he believed he was allowed to use the device for personal use. (Quon said there was an "informal policy [that] allowed officers to maintain their privacy in their text messages as long as they paid the overage charges." Quon had been paying the overage charges under an informal agreement with one of his managers.)

The 9th Circuit agreed, and found that Quon had a "reasonable expectation of privacy" in those texts.

Since oral arguments were only heard on Monday, it's not likely we'll have a decision for several months.

But, depending on just how broadly the Court's decision extends, the ruling could have broad implications on how public and private employees can be monitored. The case will also likely spur more efforts to educate employees about the consequences of sharing personal information on work e-mail or phones.

Further, regarding employers obligations, it will likely result in employers making greater efforts to not only update policies regarding the use of company electronic devices, but also require them to make sure the policy is consistently applied. The lack of consistent application of the written policy was apparently the issue that doomed the City of Ontario's case.

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