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Privacy Claims of "Sexting" S.W.A.T. Police Officer Fail

Volume 9, Issue 8
September 26, 2010

The U.S. Supreme Court recently held that a city's audit of its police officers' text messages sent using city-issued pagers was reasonable under the Fourth Amendment to the U.S. Constitution, thereby negating the Ninth Circuit Court's prior ruling that the City's audit was improper given the police officers' reasonable expectations of privacy caused by lax enforcement of the City's related personnel policy. See City of Ontario v. Quon, 560 U.S. ____, 130 S. Ct. 2619 (2010).

The case involved the City of Ontario, which had contracted with a private company to provide two-way pager service for its police department's S.W.A.T. officers, up to 25,000 characters per month with an overage fee charged when the City exceeded the allowable number of characters. Employees using the pagers were required to sign a letter of acknowledgement regarding the City's e-mail, internet and computer usage policy, which stated that the City had the right to monitor and log all network activity, including e-mail and internet use. While the City's policy did not specifically address text messages, employees did attend a meeting during which they were instructed that text messages sent from the two-way pagers would be considered the same as e-mail.

On a number of occasions, S.W.A.T. member and sergeant, Jeff Quon, exceeded his text messaging limit due to what is sometimes referred to as "sexting," the sending of sexually explicit personal texts. His text messages were not audited per City policy due to lax enforcement by a particular supervisor. Subsequently, however, the City did audit Quon's and other employees' text messages to determine whether the overage fees incurred by the City were the result of an increase in legitimate business requiring an expanded service contract. Quon and others sued the service provider that provided copies of their texts to the City for violations of the Stored Communications Act and the City itself for violations of their Fourth Amendment rights to be free from arbitrary and invasive government acts against their privacy, dignity and security.

The Ninth Circuit Court found that while the City's e-mail, internet and computer usage policy and the informational meeting it held with employees may have been sufficient to abrogate any expectation of privacy in their text messages, the employees nonetheless reasonably relied upon the lax enforcement of the policy by their supervisor, such that it was improper for the City to audit the text messages without prior warning.

When the case was appealed to the U.S. Supreme Court, many legal commentators hoped the Court would provide a comprehensive discussion of the applicable standards for evaluating workplace privacy and technology issues. Unfortunately, the Supreme Court decided the case on very narrow grounds finding that even if Quon had an expectation of privacy when "sexting," the City's review of his text messages was reasonable given that only text messages sent during two of several months where he and other employees exceeded the allotted characters were examined in conjunction with a legitimate, work-related purpose.

While private employers are not subject to Fourth Amendment claims, they are subject to state law tort claims for invasion of privacy that utilize a similar analysis. Thus, this decision provides an important reminder of the need for all employers to ensure that their workplace technology policies are comprehensive, routinely updated, issued to employees using a written, signed acknowledgment and properly enforced by its supervisors. Such policies should clearly notify employees that they have no expectation of privacy when using employer provided equipment as their use of such equipment and any data transmitted are subject to monitoring and review.

The Supreme Court's full opinion can be located by clicking this link: http://laws.findlaw.com/us/000/08-1332.html

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