Text-Message Case Could Redefine Workplace Privacy

California police officer Jeff Quon says he believed that hundreds of personal text messages he'd sent with his work-issued pager — including sexually explicit notes to his mistress — were private.

After all, the Ontario Police Department, where the married Quon is a SWAT team sergeant, had told him and others that electronic missives wouldn't be reviewed if officers reimbursed the department for charges beyond what the city's text service contract allowed.

But when police officials eventually decided to review the texts of heavy users like Quon — ostensibly to determine if the service contract needed to be expanded to accommodate work-related texts — they set off a legal battle over workplace privacy in the digital world that has now reached the U.S. Supreme Court.

At issue is whether and when constitutional privacy rights extend to text messages sent by public employees on work-issued communication devices, and how far government employers may go in writing policies that limit those rights. Whatever the court decides next year could have broad privacy repercussions for public employees who use work-issued communications devices, and their employers who write the rules for usage.

"There's a cry for clarity in this area," says Evans Anyanwu, a New Jersey lawyer who specializes in Internet law.

The Supreme Court case that established an employee's reasonable right to expect privacy in the workplace — and an employer's companion right to intrude if circumstances warrant — is more than two decades old.

And that decision in O'Connor v. Ortega, which involved a physical search of a public hospital doctor's office, was rendered long before e-mail, texting and tweeting became the coins of the work communications realm.

"A lot has happened in two decades," Anyanwu says. "In the digital era, O'Connor has a problem."

Work Vs. Personal Uses

Quon's case once appeared to be a clumsy vehicle for a privacy dispute because, at the time of the texting controversy, the Ontario Police Department essentially had two policies on personal use of city-owned computer equipment and e-mail services.

A written policy permitted only limited personal use of equipment; but Quon and other officers had been told verbally that there would be no examination of personal vs. work use of their pager text function if they paid the overages.

The 9th Circuit Court of Appeals said that verbal "policy" gave Quon and others a reasonable expectation of privacy,and that police officials had other, less intrusive ways to determine whether they needed to amend their text service contract.

The police department appealed, claiming that the officers should not harbor expectations of privacy when using a workplace pager — in this case, one issued by a police department for public safety purposes.

But the circuit was bitterly divided, and seven dissenting judges argued that the police department was not obligated to use a less intrusive means to conduct its search and that O'Connor guaranteed a public employer's right to conduct its text search.

"The circuit's decision was surprising and controversial," says Kristen Mathews, head of law firm Proskauer Rose's privacy and data security group and editor of its privacy law blog.

"It called into question an entity's ability to rely on their written policy for employee use of company or city-provided Internet services," she says. "To me, the Supreme Court took the case to resolve the quandary we're in and to give us clarity as to what extent a company can rely on its written policies."

As For Private Employers And Their Employees...

The law is more settled in the private-company realm: Employees of private companies have almost no expectation of privacy when using company-issued equipment, including computers and hand-held devices. Though most legal analysts predict little private-sector ripple effect from a high court decision on the Quon case, the justices' opinion could help private employers shape their policies for use of work-issued communications equipment.

Lawyers for both public employees and their employers are looking to the court for a bright line regarding workplace privacy and electronic communications — though most acknowledge that clear solutions may remain elusive.

"The technology has overreached what the law seems to be able to handle," says Paul Mollica, a Chicago-based lawyer and member of the National Employment Lawyers Association. "The analysis of who has a reasonable expectation to privacy — there just are not a lot of bright lines on these kinds of rules."

"Every claim," he says, "brings its own set of facts."

And those facts are complicated by the ubiquity of hand-held communications devices — and employers' tacit expectations that employees be available on those devices during and often after work, and employees' almost unavoidable use of the devices for personal communications.

Rewriting Privacy Precedent?

Quon's claim that his constitutional rights were violated by what his lawyers assert was an unreasonable search and seizure of his text messages may not survive high court scrutiny. The nature of many of his nonwork text messages has also complicated his argument.

But the police sergeant's case has the potential to rewrite a privacy precedent that has seemed increasingly creaky — and limited — in the brave new world of digital communication, where by both necessity and human nature, work and personal communication have become inextricably entwined.

Says Atlanta-based lawyer Jon Neiditz, who has written about the Quon case: "It's a real thicket of issues."

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