The Supreme Court’s recent decision that a California police chief did not violate an officer’s Fourth Amendment rights by searching his text messages kicked up a load of headlines that I thought were, frankly, rather sensationalistic. “Supreme Court: Text Messages Not Immune From Company Search” is one example, the implication being that some kind of attack on privacy is underway, and individual rights have been lost in the void of ever-expanding electronic communication.
Nothing could be further from the truth. This ruling is good news both for employees and employers, both of whom need clear guidelines in order to know what communication can be expected to be private, and what is open to examination for what the court called “legitimate work-related purpose.”
Ironically, the article with the headline quoted above, by Tom Diemer, strikes quite a reasonable, even-handed tone, and even contradicts that headline with an examination of just how carefully and specifically the court acted in this decision:
The unanimous decision in the case, City of Ontario v. Quon, was made narrowly as the high court steered clear of a sweeping opinion on privacy parameters for use of cellphones and other electronic communications equipment . The case involved a SWAT team officer who exceeded the monthly limit on text messaging from his department-issued pager, sending many missives that were personal, including in some sexually explicit remarks to his wife and a mistress, the Washington Post said.
A little more background on the case, from the site PoliceOne.com, helps to explain how this case became a national issue, and what employers can learn from it about their own policies on electronic communication:
In a 9-0 decision issued late last week, the U.S. Supreme Court sided with a California Police Department after Sergeant Jeff Quon and another officer sued Arch Wireless (the agency’s paging service provider) for privacy breaches. Quon’s text messages to his then-wife and his girlfriend, a police department employee, were provided to the department after the chief requested an audit of the text message usage to determine whether the department’s character limit was high enough to meet officers’ work communications needs. Quon sent messages that were described by the trial court as “sexually explicit in nature.” The department conducted an internal affairs investigation and disciplined Quon. The wife and mistress also joined the lawsuit as plaintiffs. A jury sided with the defendants. However, the Ninth Circuit Court of Appeals reversed, holding that the search was unreasonable. The Supreme Court then agreed to consider the appellate court decision.
The key detail for employers is that the department had already extended its email policy to cover other department-issued electronic devices. This is an essential lesson for every company: privacy rights can no longer be defined only for email messages. If you are in charge of company policy and that antiquated language is hanging around in your handbook, change it immediately to also incorporate any phones, pagers, iPads or other electronic devices belonging to and issued by the company.
In the end, basically, what the ruling says is that text messages should be treated no differently than email has been for at least a decade now. There should really be no surprises here, as long as the company expressly extends that email policy to cover texts.
The limited scope of the decision is also a wise wait-and-see move on the part of the court. Not only because technology changes so quickly, but also because, according to this story, the justices themselves will never be mistaken for gadget geeks:
…the justices of the Supreme Court at times seemed to struggle with the technology involved. The first sign was about midway through the argument, when Chief Justice John G. Roberts, Jr. - who is known to write out his opinions in long hand with pen and paper instead of a computer - asked what the difference was “between email and a pager?”…At one point, Justice Anthony Kennedy asked what would happen if a text message was sent to an officer at the same time he was sending one to someone else. “Does it say: ‘Your call is important to us, and we will get back to you?’” Kennedy asked.
Um, no. By the way, this decision is also an important victory for privacy rights, according to the Electronic Frontier Foundation:
Instead of finding no Fourth Amendment privacy protection in text messages, the Court instead assumed without deciding that there was a Fourth Amendment expectation of privacy in the text messages, but that the City's search of the text messages was reasonable under the Fourth Amendment because it was work-related. In doing so, the Court applied but did not expand its previous rulings on the limits of privacy in government workplaces.