High Court may hear texting-privacy case

WASHINGTON — The Supreme Court is expected to decide as soon 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 9th U.S. Circuit Court of Appeals ruled that the Fourth Amendment and a federal electronic communications law protect the privacy rights of workers who send text messages on devices provided by their employer. The appeals court ruled in favor of police Sgt. Jeff Quon and three fellow officers in Ontario, Calif., 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 city of Ontario and its wireless service provider appealed. Both were held liable for their part in retrieving and reviewing the messages sent by Quon and his co-workers.

A Los Angeles lawyer who appealed on behalf of the city said the 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, cell phones or pagers, said attorney Kent 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 a monthly limit of 25,000 characters. It was understood that some of these messages would be personal and unrelated to police work.

When Police Chief Lloyd Scharf learned some officers were regularly exceeding the limit, he asked for an audit "to determine if someone was wasting ... city time not doing work when they should be." An employee at Arch Wireless, the wireless service provider, sent transcripts of the text messages to the police chief, and an internal affairs report found that most of Quon's messages were personal and included sexually explicit comments to an officer who was said to be Quon's 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 Fourth 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 "any service" that 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 would return to a judge in Los Angeles 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 policies on the use of computers, cell phones and other devices.

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."