Supreme Court to look at employees' privacy rights

The US Supreme Court has agreed to take up a case examining to what extent employees have an expectation of privacy in personal communications conducted on employer-issued communications equipment.

Workplace privacy is becoming an increasingly thorny issue with a broadening array of office technology used to aid efficiency and job performance but that can also provide a paper trail of intimate and potentially embarrassing details of a worker’s personal life.

That’s what happened to Police Sgt. Jeff Quon.

As a member of the Ontario, Calif., Police Department’s SWAT team he was issued a digital pager.

The city maintains a policy for computer, Internet, and e-mail use that barred personal use. It says employees should have no expectation of privacy or confidentiality.

When the city purchased pagers in April 2002, it announced that they, too, would be covered by the city’s e-mail policy. But this instruction was not expressed as a formal amendment to the written policy.

Instead, day-to-day practice evolved into an informal policy on the use of pagers. The contract with the city’s service provider allowed 25,000 characters of use each month. If an officer went over that limit, a department official would contact the officer and obtain payment for any overage.

This informal policy suggests that the city understood and accepted the fact that many department members were using their official pagers to send and receive personal messages.

Then in August 2002, the police chief, without notice, ordered an audit of pager use. The city contacted the pager service and requested transcripts of communications from pagers that had exceed the 25,000 character limit. Sergeant Quon’s was among them.

Explicit personal messages

The transcripts revealed not only that Quon was using the pager for personal messages but that many of these messages were sexually explicit. Some were sent to his wife Jeriyln. But others were sent to a dispatcher, April Florio, at the department with whom Quon was having an affair, according to court documents.

Quon, his wife, his alleged girlfriend, and another officer, Steve Trujillo, responded to the release of the transcripts by filing a lawsuit in federal court claiming violation of their privacy by city officials.

At trial, a federal jury returned a verdict for the city. On appeal, the Ninth US Circuit Court of Appeals reversed, ruling that Quon and the others all had a reasonable expectation of privacy in the personal messages sent on the city’s pager. The appeals court also ruled that the city engaged in an unreasonable search when officials requested transcripts of the pager communications from the service provider without first seeking permission from a sender or recipient of those messages.

In urging the high court to take up the case, lawyers for Ontario and its police department said the Ninth Circuit’s decision was a “sweeping, categorical extension of Fourth Amendment rights.”

Expanding privacy rights?

The Ninth Circuit’s ruling “hampers public agencies’ ability to monitor employees’ workplace electronic communications,” writes Los Angles lawyer Kent Richland in his brief on behalf of Ontario.

“The question this court needs to address is what happens when public employees seize on informal accommodations [such as in the Quon case] to try to expand expectations of privacy beyond those that society is prepared to recognize as reasonable,” Mr. Richland writes.

He adds: “In effect, the Ninth Circuit opinion affords Fourth Amendment protection to irresponsible plaintiffs’ unreasonable expectations of privacy and thus encourages public employers to curtail any accommodations in electronic communications.”

Quon’s lawyer, however, says the Ninth Circuit decision does not expand privacy protections. “In practical terms the decision is insignificant since it is based entirely on Ontario’s own unique practice, and one that most employers would not embrace,” writes Upland, Calif., lawyer Michael McGill in Quon’s brief.

Mr. McGill said the Ninth Circuit decision turns on the actions of the Ontario police department that created employee expectations of privacy. “Quite candidly, the appellate decision acknowledged that Ontario was its own worst enemy,” he writes.

In a friend of the court brief, the League of California Cities warned that the Ninth Circuit decision, if allowed to stand, was likely to have a significant adverse affect on local government efforts to enforce written policies restricting personal use of government-issued equipment.

“At most, the informal billing practice here created a subjective expectation of privacy for Sergeant Quon,” the brief says. “But the operational realities of the police department made any subjective expectation of privacy in those messages unreasonable.”

The case, City of Ontario v. Quon, is expected to be heard next spring, with a decision by late June.

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