Supreme Court may hear appeal on workers’ text message privacy

The Supreme Court is expected to decide as early as today whether to hear an appeal of a case in which employees won a constitutional right to privacy in their text messages, even when the messages were sexually explicit comments to co-workers.

Last year, the U.S. 9th Circuit Court of Appeals ruled that the 4th Amendment and a federal electronic communications law protect the privacy rights of workers who send text messages on devices provided by their employers. The appeals court ruled in favor of Ontario police Sgt. Jeff Quon and three fellow officers who sued after the police chief read their messages.

“The Quon case is very important. It came down at a moment when there was virtually no protection for employee privacy,” said Lewis Maltby, president of the National Workrights Institute in Princeton, N.J. “If it stands, it would mean employees for the first time could communicate at work with privacy.”

The San Bernardino County city and its wireless service provider filed the appeal. Both were held liable for their part in retrieving and reviewing the messages sent by Quon and his co-workers on text pagers.

A Los Angeles lawyer who appealed on behalf of the city said the Circuit Court ruling sets a “very troublesome” precedent for public agencies and private employers. “The city had an explicit policy that employees had no expectation of privacy” when they were using its computers, cellphones or pagers, said attorney Kent L. Richland. “Most government agencies have the same policy. I think it’s conceivable the 9th Circuit’s decision could be read to say there is a privacy interest in e-mail communications as well.”

Quon and the other officers in Ontario had signed a statement declaring “users should have no expectation of privacy or confidentiality” when using computers or other devices furnished by the city. But shortly after text pagers were distributed to members of the SWAT team, the officers were told by a supervisor they could use them to send messages, so long as they paid out of their pocket for messages that exceeded 25,000 characters a month. It was understood that some of these messages would be personal and unrelated to police work.

When Police Chief Lloyd Scharf learned that some officers were regularly exceeding the 25,000 characters limit, he asked for an audit “to determine if someone was wasting . . . city time not doing work when they should be.”

An employee of Arch Wireless, the service provider, sent transcripts of the text messages to the chief, and an internal affairs report found that most of Quon’s messages were personal and included sexually explicit comments to another female officer who was said to be his girlfriend.

After Quon and the other officers learned their messages had been read, they sued. They lost before a federal judge in Los Angeles, but won before the 9th Circuit.

In deciding for the officers, Judge Kim McLane Wardlaw and the 9th Circuit announced two significant rulings. First, she said, reading the text messages was an “unreasonable search” prohibited by the 4th Amendment.

Officials need clear evidence of wrongdoing before they listen in on private conversations, she said.

Second, she said, the wireless provider violated the Electronic Communications Privacy Act of 1986 when it revealed the contents of the text messages. The measure says that “any service” which allows users to send or receive electronic messages cannot divulge stored messages without the consent of the sender or the recipient.

If the Supreme Court turns down the appeal, the case will return to a judge in L.A. to decide what damages are due Quon and the other officers.

The 9th Circuit’s decision has set off debate among experts in workplace law.

Burt Fishman, a management lawyer in Washington, said employers usually head off privacy claims by setting clear rules on the use of computers, cellphones and other devices. “That [9th Circuit] decision threw me for a loop,” he said.

But Ellen Messing, a Boston lawyer who represents employees, said the decision reflects a new era.

“Today there is such a fuzzy boundary between what’s work and what’s personal,” she said, since employees regularly send personal messages while they are at work and work during their personal time. “The courts may be backing off the theme that because the employer owns it, the employee has no privacy.”

The decision also set off a spat within the 9th Circuit, led by two judges from Los Angeles. In January, Judge Sandra Segal Ikuta filed a 10-page dissent concluding that Wardlaw’s decision was “contrary to the dictates of reason and common sense.” Seven other judges agreed, but that was not enough to win a rehearing from the full appeals court.

Wardlaw attached a statement to the dissent that began, “No poet ever interpreted nature as freely as Judge Ikuta interprets the record on this appeal.”

The city of Ontario highlighted Ikuta’s dissent in asking the Supreme Court to take up the case. The justices considered the appeal in their closed-doors conference Friday and will meet today to issue orders on pending appeals.