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Supreme Court To Weigh In On Employee Text Messaging Privacy

An impending Supreme Court decision could re-evaluate rules and set a new standard for employee privacy on communications sent from employer-provided pagers, mobile phones and laptops.

The case was brought to the Supreme Court after Sgt. Jeff Quon along with three other officers sued the Ontario Police Department, of Ontario, Calif. for reading hundreds of personal -- and in some cases sexually explicit -- text messages sent and received on department-owned pagers, according to the Los Angeles Times.

The Supreme Court justices will review a ruling by the U.S. Court of Appeals for the Ninth Circuit, in San Francisco, that said employers were in violation of worker's privacy rights and unreasonable search laws as stated by the U.S. Constitution for reading text messages, and accessing other information such as e-mails, sent on devices provided by the employee's company or organization.

The City of Ontario appealed that ruling to the Supreme Court, saying it is customary for employers to have policies that gives them access to electronic communications by its employees using employer-owned devices.

The City of Ontario claimed it had an absolute right to view personal e-mails, stating department policy allowed some personal use of employer-owned mobile phones but specifically warned that the city could not guarantee privacy.

Among other things, the city's written policy states that, "The use of these tools for personal benefit is a significant violation of City of Ontario Policy" and says that "The use of any City-owned computer equipment ... e-mail services or other city computer related services for personal benefit or entertainment is prohibited, with the exception of 'light personal communications," meaning that "some incidental and occasional personal use of the e-mail system" could constitute "personal greetings" or "personal meeting arrangements," according to Ontario's written "Computer Usage, Internet and E-mail Policy."

The city also contended that Quon sent messages despite knowingly signing a city policy that allows only limited personal use of employer-owned electronic equipment and that explicitly did not guarantee employee privacy when using those devices.

However, Quon and his colleagues appealed, contending that they were told they could expect a reasonable amount of privacy with company-owned pagers and mobile devices in their control. The subsequent U.S. 9th Circuit Court of Appeals ruling maintained that the police officers had a "reasonable expectation of privacy" in their text messages.

The ruling was the first to uphold the privacy rights of employees using electronic devices provided by their employer.

The final Supreme Court decision, slated to be finalized some time in June, could establish new rules and set a new standard for employees and employers regarding privacy on employer-provided devices.

Quon and three colleagues sued City of Ontario after they learned their messages had been read. Last year, the appeals court ruled that the police chief's inspection violated the officers' rights under the 4th Amendment. It also found the wireless company, Arch Wireless, in violation of the federal Electronic Communications Privacy Act when it willingly gave the police chief access to Quon's text messages without his consent.

The case has galvanized privacy rights organizations. Until the 9th Circuit ruling, most judges maintained that employers providing laptops or mobile phones have the ability to access and view any and all content on those devices. Until recently, many employers, including the City of Ontario, had formal policies stating that employees did not have right to privacy when using employer provided mobile phones, pagers and computers.

The issue first came to light when Quon ran up text messaging overages on the city-provided pager. Each city pager was allotted 25,000 characters a month, however Quon was told he could reimburse the city for any charges for exceeding the limit. Quon had exceeded the 25,000 character limit "three or four times," but had paid for the overages every time without anyone reviewing the text of the messages, according to court documents.

The police department contacted the carrier Arch Wireless, after learning some officers had exceeded the limit each month in an attempt to audit the officers' use of pagers. Arch Wireless then provided transcripts of the messages to the Ontario police department at the request of the police chief.

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