Wednesday, December 16, 2009

Supreme Court To Take Up Whether Employers Can Read Employees' Steamy Text Messages

Can your boss read wireless text messages sent by employees on company pagers/cell phones? That's what the US Supreme Court gets to decide in the upcoming session.
The Supreme Court announced Monday it will rule on sext privacy: whether a boss can read the X-rated text messages employees send on their work phones.

At issue is a California cop who sent reams of steamy texts on his SWAT pager to his mistress.

The case is the first time the courts have addressed the privacy of wireless communications, and the high court's final decision could have far-reaching effects. "This could change the whole legal landscape of electronic monitoring at work," said Lew Maltby, president of the National Workrights Institute.

Last year, the 9th Circuit U.S. Court of Appeals, the nation's most liberal, ruled that Sgt. Jeff Quon could reasonably expect his dirty messages to stay private.

The reason? Department policy was to let cops text at will and simply charge them for going over a monthly character limit. The Ontario, Calif., officers were told informally that the content of their messages would not be read.
The person in the Department got tired of being a bill collector and requested a log of the files sent by the biggest user of text messages, and found the x-rated messages.

The City and the wireless company were sued for violating the officer's privacy, and the 9th Circuit ruled that they indeed violated the officer's reasonable expectation of privacy.

It will be interesting to see how the US Supreme Court rules on this.

I suspect that the Court will find that there will be an expectation of privacy where there is an official and stated privacy policy, but unwritten or informal policy will not be grounds on which a person can expect privacy. Further, the Court could shape the ruling based on the fact that the employer also happens to be a governmental entity.

Orin Kerr, who regularly posts at the Volokh Conspiracy, is quoted by the NY Times that the Court will likely narrow its ruling because of the circumstances involved. The Times report also notes:
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.
Kerr is right that they'll tailor matters narrowly, but the Court may may try to link back text messaging to the concept of email and Internet usage, and therefore find that the officer had no expectation of privacy and that the City and police department's official policy was sufficient.

Additional background on the case is here.

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