‘Sexting’ decision leaves privacy issue unresolved

When the U.S. Supreme Court took up the case City of Ontario v. Quon, the legal world braced for the justices to rule on whether employees have a privacy interest in the messages they send on employer-issued mobile devices.
But the court sidestepped that issue, ruling instead that an employer’s acquisition of employees’ text message transcripts to determine whether the messages were personal or business-related in
nature was not an unreasonable search. Therefore, the court ruled, no Fourth Amendment search and seizure violation occurred.
But employment attorneys said the court still sent a message to employers in the ruling: have a clear policy in place regarding personal use of all electronic communications and devices — not just computers and e-mail.
“The decision is still a wake-up call for 21st century government and private-sector employers alike,” said attorney Robert Brownstone, law and technology director in the Mountain View, Calif., office of Fenwick & West and an expert in privacy and electronic discovery law.
The case involved text messages sent and received by a police officer, Jeff Quon, on a city-issued pager. Although the city had no text messaging policy, it had a computer and e-mail policy prohibiting the use of city-owned computers and all associated equipment for personal benefit. The policy also said that employees had no expectation of privacy in e-mail messages sent on the city’s system.
However, officers were told that if they exceeded the allotted number of text messages allowed under the city’s pager plan, they could either pay for the overages or the messages would be checked to determine if any were personal. If officers chose to pay, the messages would not be checked.
Later, the city announced a new policy that text messages would be covered under the original computer and e-mail policy.
After noting overages in Quon’s account, city officials asked the service provider for transcripts of the messages and discovered texts sent to his wife and mistress, some of which were sexually explicit in nature.
The officer, his wife and his mistress sued the city, alleging violation of the Stored Communications Act and the Fourth Amendment. A U.S. District Court granted partial summary judgment for the city.
The plaintiffs appealed, arguing that they had a reasonable expectation of privacy in their text messages. The 9th U.S. Circuit Court of Appeals agreed, reversing the trial court.
The Supreme Court agreed to hear the case and reversed in a unanimous decision.
In an opinion written by Justice Anthony M. Kennedy, the court held that the search was justified by the “work-related purpose” of determining whether the officer was sending personal messages.
“[R]eviewing the transcripts was reasonable because it was an efficient and expedient way to determine whether Quon’s overages were the result of work-related messaging or personal use,” Kennedy wrote.
Impact of court’s lack of tech savvy?
During oral arguments, several of the justices’ questions suggested a discomfort with the digital-age technology involved in the case — a signal, attorneys said, that the justices were not ready to wade into the privacy issue.
Kennedy asked if a text message were sent to someone who was on a phone call, would it trigger “a voice mail saying ‘your call is very important to us – we’ll get back to you?’”
Justice Sonia Sotomayor, trying to determine if other officers could obtain the text messages out of pure prurient interest, asked whether others could “listen in” on the messages.
Justice Antonin Scalia asked: “Can you print these things out? Could [the officer] print these spicy conversations out and circulate them among his buddies?”
Even Chief Justice John G. Roberts Jr., the court’s youngest member, did not realize that messages are processed by a service provider.
“I wouldn’t think that,” Roberts said. “I thought, you know, you push a button; it goes right to the other thing.”
“You mean it doesn’t go right to the other thing?” Scalia asked.
It was this unease with text messaging that led Philip L. Gordon, a shareholder in the Denver office of employment law firm Littler Mendelson, to predict early on that the court would leave the privacy expectation question unanswered for now.
“It was obvious from the oral argument that the court did not feel comfortable with the technology at issue,” Gordon said.
In the opinion, Kennedy seemed to agree.
“A broad holding concerning employees’ privacy expectations vis-à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted,” Kennedy wrote. “It is preferable to dispose of this case on narrower grounds.”
No cover for employers
Even though the justices ruled in the employer’s favor and declined to carve out a privacy expectation for employees in the case, attorneys said that employers should still pay careful attention to the ruling.
“I don’t think this decision gives employers cover, first because the decision left open whether or not Quon had a privacy expectation,” Gordon said. “That issue is still in play.”
The ruling also does not rule out every possible Fourth Amendment challenge to an employer’s search of an employee’s electronic communications.
“Employers still need to be concerned that there is a potential for viable claims even when they are searching communications on employer-issued equipment,” Gordon said.
Brownstone said that the court essentially told employers exactly what to do in order to avoid problems: have clear express policies governing the use of all employer-issued equipment, and update them frequently.
“Especially impactful is the main opinion’s dicta as to the contents of express written policies being up-to-date and clearly communicated to managers and staff,” said Brownstone, who advises employers on the drafting and implementation of workplace privacy and electronic-communications policies. “[T]he thrust of that dicta is consistent with years of workplace privacy caselaw applying various federal and state statutory and common law principles.”
Employees can also learn much from the case, starting with leaving their “sexy texts” to their personally owned mobile devices.
“Always use discretion as to what you memorialize in writing,” Brownstone advised.