Supreme Court rules on workplace sexting, upholds 1987 decision on electronic privacy

The Supreme Court of the United States

The Supreme Court of the United States

The Supreme Court released an important decision on electronic privacy in the workplace today, which I’ve embedded below.

In the case of City of Ontario, California v. Quon, the court unanimously upheld a 1987 decision that recognized the workplace privacy rights of government employees.

“The case involved the use of text pagers issued to officers by the city police department,” said Jim Dempsey, the Center for Democracy and Technology’s vice president for public policy.

“When one officer consistently went over the allotted limit on messages, his supervisors obtained stored text messages from the service provider and found that many were personal, not work-related.  The officer claimed that the search violated the Fourth Amendment.  The Supreme Court held that the police department’s actions were reasonable, and thus did not violate the constitutional rights of the police officer.

“What is significant about the Supreme Court’s opinion is what did not happen,” said Dempsey. “Faced with an opportunity to curtail workplace privacy (or electronic privacy generally), the Court noted, applying a 1987 precedent, that government employees generally retain their Fourth Amendment privacy rights, and it assumed that government employees may have a reasonable expectation of privacy even in communications they send during work hours on employer-issued devices.

The case could have had very far-reaching implications because of the way in which work-related and personal communications have become so interwoven, in both the government and the private sectors, as employers expect workers to be always available by cell phone, text and email.  The Court recognized this trend, but declined to set any new rules.”

The New York Times also has published analysis of the ruling,” Justices Allow Search of Workplace Pagers.”

“This ended up as a workplace privacy case for government employees,” said Dempsey. “The message to government employers is that the courts will continue to scrutinize employers’ actions for reasonableness, so supervisors have to be careful. Unless a ‘no privacy’ policy is clear and consistently applied, an employer should assume that employees have a reasonable expectation of privacy and should proceed carefully, with a good reason and a narrow search, before examining employee emails, texts or Internet usage.”

The Supreme Court opinion is online at http://www.supremecourt.gov/opinions/09pdf/08-1332.pdf.

CDT and other privacy advocates filed an amicus brief, cited by the Court in its opinion, urging the Court to tread carefully and avoid casting any doubt on the privacy of new communications technologies. PDF: http://www.cdt.org/files/pdfs/08-1332_bsac_Electronic%20Frontier_Foundation_et_al.pdf.

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2 Comments

Filed under cyberlaw, technology

2 responses to “Supreme Court rules on workplace sexting, upholds 1987 decision on electronic privacy

  1. I am not with court holding in this case. Regardless of the debate surrounding the nature of the messages the officer sent-his fourth amendment rights were clearly violated. I don’t accept the courts assertion that the police department was acting in an reasonable fashion. The fourth amendment is not designed to protect a computer, a phone, a bag, a glove compartment, a locker, a desk, a cup, a jar, or anything else for that matter. The fourth amendment is designed to protect an individual. The phone may have been the property of the police department,but the messages contained within were not the property of the police department. They belonged to the officer and the individuals who recieved the messages. What about they’re fourth amendment rights? The only thing that would have been reasonable would have been the department asking the officer to pay the bill and be done with it!

  2. The U.S. Supreme Court’s decision in NASA v. Nelson on January 19, 2011 was the second time in the past year the court weighed-in on workplace and digital privacy. The first case was Quon v. City of Ontario in June of 2010. These cases will almost certainly have a significant impact on similar privacy cases in the future, and will provide needed guidance to businesses when addressing privacy issues.

    In Quon, the employer reviewed text messages that police department employees sent using employer-owned electronic devices. In NASA, the employer was obtaining information (including information about use of illegal drugs and medical treatment for such drug use) in the course of conducting background checks.

    In both NASA and Quon, the Supreme Court declined to decide whether the employees had protectable privacy rights. Instead, the Court found that – even if such rights exist – the actions taken by the employers did not violate those rights.

    In Quon, for example, the Court held that the employer had a legitimate business interest for reviewing texts sent by police department employees, and that process used to review the texts was reasonable under the circumstances. In NASA, the employer likewise had a legitimate business interest for conducting background checks on individuals working at NASA’ jet propulsion lab, and the questions on the background check documents were reasonably tailored to obtain information appropriate for that endeavor.

    By declining to decide whether the employees had protectable privacy rights, the Supreme Court left the door wide open for employees to make claims alleging violations of their rights to digital privacy and privacy with respect to information collected by employers. In addition, by finding that such rights (if they exist) were not violated, the Court established standards to which businesses will be held accountable, and provided a framework for them to use to comply with these standards.

    In light of these two U.S. Supreme Court decisions, businesses need to assess whether their policies and procedures comply with the standards set forth in NASA and Quon, and establish protocols that will help avoid employees and their attorneys making claims alleging violations of privacy rights.

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