Supreme Court takes up 'sexting' privacy case

The US Supreme Court on Monday took up a case testing whether a police officer who used his department-issued pager to transmit and receive sexually explicit messages had a reasonable expectation of privacy that the messages would not be viewed by police officials.

The case is being closely watched because it could establish new constitutional ground rules for when personal text messages, emails, and other communications in the workplace are entitled to Fourth Amendment privacy protections.

The case before the high court involves a sergeant on the SWAT team of the Ontario, Calif., police department. Jeff Quon used his police-issued pager to send and receive both work-related and personal messages.

The police department maintained a written policy that permitted limited personal use of department-issued computers and other equipment. The policy warned employees that their computer-generated emails and text messages might be monitored or audited at any time.

In 2001, the city distributed pagers to certain members of the police department, including Mr. Quon. Officials said the same no-privacy policy for computers would also apply to the pagers.

But within a year, a department official told officers he had no intention of auditing pager message traffic, provided the officers personally paid for any extra charges on their pagers above the city’s monthly subscription allowance.

Quon went over the limit at least three times and paid the city for the extra charges each time.

Then, in August 2002, the pager reimbursement procedure was changed. Rather than allowing officers to cover the costs of their personal messages, the police chief authorized department officials to review transcripts of text messages that exceeded the department’s monthly allocation.

The review revealed that Quon had engaged in extensive non-work-related communications on his pager, and that some of these communications were sexually explicit messages sent to his girlfriend. The matter was referred to internal affairs for an investigation.

Quon responded by filing a lawsuit in federal court charging that he had a reasonable expectation of privacy in his personal text messages and that the department’s actions had thus violated the privacy protections of the Fourth Amendment.

A federal judge found no Fourth Amendment violation and dismissed Quon’s lawsuit.

On appeal, the Ninth US Circuit Court of Appeals reversed, ruling that because the department had maintained an unwritten text message policy allowing officers to pay reimbursements, Quon had a reasonable expectation that his personal messages would remain private.

In addition, the appeals court found that the department’s decision to review transcripts of Quon’s text messages was unreasonable.

It is that Ninth Circuit decision that is under review at the high court.

The Obama administration joined the appeal on the side of the City of Ontario and is asking the justices to overturn the appeals court decision.

“Thousands of employers across the country rely on these [limited personal use] policies, and millions of employees,” Deputy Solicitor General Neal Katyal told the justices. “The Ninth Circuit’s decision puts that reliance in some jeopardy because it says you can have an official policy and it can be taken back by what some ad hoc subordinate says.”

The city’s lawyer, Kent Richland, urged the justices to find that the city’s written policy had clearly established that employees would enjoy no protected right of privacy when using city-issued equipment for personal messages.

Quon’s lawyer, Dieter Dammeier, said Quon had a reasonable expectation of privacy via the department’s unwritten reimbursement policy and the pledge that pager use would not be audited provided the officer paid for any overages.

Justice Ruth Bader Ginsburg questioned why the unwritten policy would trump the city’s long-established written policy mandating that personal communications made on city-owned equipment would enjoy no right to privacy.

“If an employee is told, now emails aren’t private, so we are warning you, we can monitor them, wouldn’t such an employee expect the same thing to apply to the pager?” she asked.

Mr. Dammeier said it is up to the city to establish clear rules that apply to personal use of city-owned equipment. He noted that the city had failed to do so.

Despite the written policy, Dammeier said, a key official in the department gave a guarantee to officers that as long as they paid the overages their messages would remain private.

Richland, the city’s lawyer, disagreed with the suggestion that officers were given a “guarantee of privacy.”

“It is hard to see how that in any way undercuts the official written policy,” he said.

The case is City of Ontario v. Quon, and a decision is expected by late June.