December 15, 2009

Supreme Court Accepts Text Message Privacy Case

The U.S. Supreme Court said on Monday it would decide whether employees have a reasonable expectation of privacy with text messages sent from their employers' accounts.

The court accepted an Ontario, California case involving three police officers and another employee who said the department had improperly spied on their text exchanges, some of which were said to be sexually explicit.

Although the case involves government employees, the court's ruling could impact private-workplace rules for e-mail and text messages as well.  Many firms say there is no guarantee of privacy in messages sent using company- or government-provided computers and mobile phones.

Ontario, CA has a similar policy in place.  However, a police official had informally told officers their text messages would not be audited as long as the officers personally paid for charges exceeding a monthly allowance.

The 9th U.S. Circuit Court of Appeals in San Francisco said the department's informal policy gave the officers a "reasonable expectation of privacy" with their text messages, and that the police chief's decision to read the messages without any suspicion of wrongdoing violated Fourth Amendment protections against unreasonable searches.

The ruling was a first of its kind, and Judge Kim Wardlaw acknowledged in her opinion that there is little guidance for judges in this area.

"The extent to which the Fourth Amendment provides protection for the contents of electronic communications in the Internet Age is an open question," she said.

The appeals court also criticized the text-messaging service for releasing transcripts of the messages without the officers' permission.

Both the city of Ontario and USA Mobility Wireless, Inc., which acquired the text-messaging service involved in the case, appealed the ruling.  The justices turned down USA Mobility's appeal, but agreed to hear arguments in the spring in the city's case (City of Ontario v. Quon, 08-1332).

The appeals court ruling came in a lawsuit filed by Ontario police Sgt. Jeff Quon and three others against Arch Wireless, who had given their department transcripts of Quon's text messages in 2002.

Police officials read the messages to determine whether department-issued pagers were being used for purposes beyond police business.   The city said it found that Quon had sent and received hundreds of personal text messages, many of which were sexually explicit.

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