When Is a Text Message Private?

BY Quinn Bowman  December 14, 2009 at 5:10 PM EDT
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The U.S. Supreme Court announced today that it will hear a case that could influence how much privacy employees have when sending electronic messages with work devices.

The Court will hear arguments in City of Ontario v. Quon, an appeal from the U.S. 9th Circuit Court of Appeals. The case involves police SWAT officers in the city of Ontario, Calif. who sued the city after they discovered their bosses read transcripts of sexually explicit text messages sent on work pagers.

The 9th Circuit decided that the city and its wireless carrier violated the employee’s Fourth Amendment rights and a federal law when the messages were read.

Although the police department had a “no expectation of privacy” policy about the pagers, an informal rule set for the SWAT team was that they could use text pagers for personal use. When the police chief audited the texts to see why employees were sending so many messages, he read sexually explicit messages sent between some of the officers.

Marcia Coyle, NewsHour contributor and Washington bureau chief for the National Law Journal, said the case is important because it is the first to involve privacy and employee text messaging.


“It is a big deal in the sense that it is the first case they have taken involving text messages and will provide some guidelines for public employers and public employees on how much protection the Fourth Amendment offers,” Coyle told the Rundown. The case, which Coyle expects to be heard in the spring, will likely hinge on whether the SWAT officers had a “reasonable expectation of privacy” when using the pagers, a determination that depends on the details of the differences between the department policy and the SWAT policy on the city pagers. The court also did not announce a decision in a landmark campaign finance case, [Citizens United vs. FEC](http://www.scotuswiki.com/index.php?title=Citizens_United_v._Federal_Election_Commission), in which the justices are considering the constitutionality of the ban on corporate money in federal political campaigns. This means that Jan. 11 — when the court returns from a break — is the earliest a decision could be announced. Coyle thinks the delay hints that the justices could be making a big change with their ruling. “If they wanted to do something narrow, it would’ve come out by now. The longer the delay, the more it leads to speculation they will do something major in this case,” she said.