Supreme Court sides with city in Ontario v. Quon
The U.S. Supreme Court has ruled that Ontario, Calif., officials did not violate a police sergeant’s right to privacy by acquiring personal text messages he sent on city-owned equipment. Meanwhile, experts connected to the case say it illustrates the need for clarity in privacy, or no-privacy, policies.
At issue in the case was whether police Sgt. Jeff Quon’s Fourth Amendment rights were violated when his supervisors read personal text messages he sent on his city-issued pager while at work. On Thursday, the Supreme Court reversed a lower appeal court’s ruling that Quon’s rights had been violated. “Because the search of Quon’s text messages was reasonable, [the city] did not violate respondents’ Fourth Amendment rights, and the [United States Court of Appeals for the] Ninth Circuit erred by concluding otherwise,” the decision says.
However, the justices go on to say the ruling should not be used exclusively to determine public employees’ overall privacy expectations. “Prudence counsels caution before the facts in this case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations of employees using employer-provided communication devices,” the ruling states. “Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. At present, it is uncertain how workplace norms, and the law’s treatment of them, will evolve.”
Experts on both sides of the issue agree the problem in Ontario’s case could have been prevented by establishing a clear set of rules for electronic communications and adhering to them. In court, Quon claimed a superior gave employees permission to use their pagers for personal messages as long as they paid any charges for exceeding the texting plan’s limits. That conflicted with the city’s general no-privacy policy already in place.
The inconsistency regarding the informal permission granted by Quon’s superior is one of the main issues in the case. In fact, during the Supreme Court hearing, Chief Justice John Roberts asked, “Do we follow the written policy or the policy they allegedly enforced in practice?”
Lars Etzkorn, program director of federal relations for the Washington-based National League of Cities, agrees that was a problem. “The city had a policy and expressed it,” Etzkorn says. “But it needed to consistently remind employees.” He recommends regularly informing employees of all policies, not just those regarding texting devices. “We certainly like and want to have middle and lower management employees to feel empowered,” he says. “But they need to know the areas where they have discretion, and that needs to be expressed as well.”
Advocates for Quon agree. “There seemed to be some practices that weren’t consistent with the policy itself,” says Gregory Nojeim, director of the Washington-based Center for Democracy & Technology’s Project on Freedom Security and Technology. “One takeaway from this case for every employer would to be follow its e-mail privacy policy very closely. To set up a practice that could be construed as inconsistent with the policy doesn’t help the employer or the employees.”
Download the decision and read a summary of the court’s opinion on the Supreme Court’s blog.
