Staff and Wire Reports
Posted: 04/19/2010 05:39:07 PM PDT
WASHINGTON – The Supreme Court appears likely to rule against Ontario police officers who claimed the city violated their privacy by reading racy text messages they sent on their employers’ account.
Several justices said Monday that the Police Department acted reasonably in monitoring the text messages in view of its written policy warning employees they have no guarantee of privacy in the use of office computer and electronics equipment.
Justice Stephen Breyer said he didn’t see “anything, quite honestly, unreasonable about that.”
While the case involves government workers, the decision could have broader privacy implications as courts continue to sort out privacy issues in the digital age. Many employers tell workers there is no guarantee of privacy in anything sent over their company- or government-provided computers, cell phones or pagers.
The case arose when the Ontario department decided to audit text message usage to see whether its SWAT team officers were using them too often for personal reasons. Three police officers and another employee complained that the department improperly snooped on their electronic exchanges, including many that were said to be sexually explicit.
An Ontario police official had earlier informally told officers that no one would look further if officers personally paid for charges above a monthly allowance.
Quon used his police-issued pager to send and receive work and personal messages.
“Sgt. Quon’s Fourth Amendment rights are significant,” Dammeier wrote in a brief to the U.S. Supreme Court. “The officers were specifically afforded the right to use the pagers for personal communication.”
The 9th U.S. Circuit Court of Appeals in San Francisco said the informal policy was enough to give the officers a “reasonable expectation of privacy” in their text messages and establish that their constitutional rights had been violated.
The appeals court also faulted the text-messaging service for turning over transcripts of the messages without the officers’ consent. The court declined to hear the appeal of USA Mobility Wireless, Inc., which bought the text-messaging service involved in the case.
The Obama administration is backing the city, arguing that the written policy, not any informal warning, is what matters.
“The nature of (Quon’s) job as a police officer, as a SWAT team leader, diminished his expectation of privacy,” Ontario’s attorney Kent Richland told SCOTUS Blog in a podcast published Monday.
“He had to expect, in acting in that role, that his communications would be reviewed in the media, that defense counsel in cases that might have developed as a result of the SWAT team activities would request to review his text messages in litigation, and that inquiry boards might also be involved in looking at SWAT team activities and would want to examine the text messages that had been sent.”
Justice Department lawyer Neal Katyal said the appeals court ruling calls into question policies put in place by governments across the country.
“Thousands of employers rely on these policies, and millions of employees,” he said.
The court could take a very narrow path out of the case.
Because the employees involved are police officers, several justices said that their communications might be sought by defense lawyers in criminal cases.
“I mean, wouldn’t you just assume that that whole universe of conversations by SWAT officers who were on duty 24/7 might well have to be reviewed by some member of the public or some of their superiors?” Justice John Paul Stevens said.
Justice Sonia Sotomayor wondered whether the reason for looking at the messages mattered.
“Let’s assume that in this police department, everyone knew, the supervisors and everyone else, that the police department people spoke to their girlfriends at night,” Sotomayor said. “And one of the chiefs, out of salacious interest, decides: I’m going to just go in and get those texts, those messages, because I just have a prurient interest.”
It wouldn’t matter, said Kent Richland, the city’s lawyer, and Justice Antonin Scalia chimed that he agreed. “So when the filthy-minded police chief listens in, it’s a very bad thing, but it’s not offending your right of privacy. You expected somebody else could listen in, if not him,” Scalia said.
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