June 19, 2008

Ontario Police Department Employees Score Victory in Federal Appeals Court

By Rod Leveque

ONTARIO - A federal appeals court has ruled the Ontario Police Department violated the privacy rights of several of its employees by reviewing text messages they sent on city-issued pagers.

The decision, issued Wednesday by the 9th Circuit Court of Appeals, overturned a lower court's ruling in the case and bolstered the rights of workers across the country to be free from unreasonable searches by their bosses.

"In today's age, where you have mass electronic communication going on everywhere, this is certainly good for all employees," said Dieter Dammeier, the attorney for the police workers.

Ontario issued 20 two-way pagers to employees, including police officers, in 2001. The devices were capable of sending and receiving text messages.

Some users routinely exceeded their monthly message limit, prompting the service provider to bill the city for excess use.

Lloyd Scharf, who was then the police chief, ordered an administrative investigation to determine whether the excess use was work-related or the result of personal communication.

As part of the investigation, the department obtained transcripts of the text messages from its service provider.

The transcripts revealed that some of the workers were using their pagers inappropriately, such as by transmitting sexually explicit messages.

Officers Jeff Quon and Steve Trujillo, Quon's wife, Jerilyn, and dispatcher April Florio sued the city in 2003, claiming the chief's reviews of their messages violated their privacy rights.

The employees lost the case in U.S. District Court, and appealed to the 9th Circuit, which sided with them Wednesday.

The three-judge appellate panel unanimously agreed the department's review of the messages violated the employees' constitutional protection against unreasonable searches as well as the federal Stored Communications Act, which prevents providers of digital communications services from divulging the private messages of its users.

The Ontario Police Department had a policy in place notifying employees that their work-related e-mail, Internet usage and computer access were subject to monitoring by supervisors.

However, there was no such policy in place for the pagers. Rather, employees were informally told their text messages would not be reviewed as long as they paid all overage fees resulting from personal use.

In Quon's case, he had exceeded his monthly use allotment on several occasions, and each time paid the overages out of his pocket.

"Nevertheless, without warning, his text messages were audited by the Department," Judge Kim McLane Wardlaw wrote in the 31-page ruling. "Under these circumstances, Quon had a reasonable expectation of privacy in the text messages."

Dammeier said Wednesday's ruling entitles the employees to monetary damages. The amount has yet to be determined, he said.

City officials did not return calls for comment.

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