Court Looks For Privacy Right In SWAT Team Sexting Case

Does a government employee have a right to privacy in text messages received on a work-issued pager? That question was weighed today in the Supreme Court in a case that may have broad implications for employee rights and privacy rights in the digital age.

The case arose when the Ontario, California police department decided to find out why SWAT team officers were repeatedly going over their monthly message limit. The department requested and received a transcript of all messages sent and received by officers, and they discovered some officers had been using the pagers for personal use and had been sending and receiving sexually-explicit messages. Officers Jeff Quon and Steve Trujillo were referred to internal affairs to determine whether they had been wasting government resources.

When the officers found out the department had looked at their messages, they sued, claiming a violation of their constitutional right to privacy under the Fourth Amendment. Though there is some disagreement on the facts, the officers were apparently informed that they were not supposed to use the pagers for personal purposes and that they would be billed for any overage charges. The department requested a transcript of messages from the pager company after the officers went over their limit for several months.

Under Supreme Court precedent, Fourth Amendment rights are determined by asking whether the person had a reasonable expectation of privacy, but because of the newness of technology the Justices had significant trouble agreeing on what the officers might have expected. None of the Justices were apparently familiar with two-way pager technology, with Chief Justice John Roberts asking how these text messages differed from email. The lawyer for the officer said that while email messages go through the police department's mail servers and are read on a computer, the pager messages stayed within Arch Wireless's systems and were read on a device the officers could take home. "You can do that with e-mails," Roberts responded, presumably referring to Blackberries and other mobile devices. At another point, Quon's lawyer said that the messages go from a pager through Arch's server, not directly pager-to-pager, and that seemed to surprise Roberts and Scalia.

Perhaps the biggest point of contention was whether the police department's policy, which forbid personal use of computers "and all associated equipment" clearly covered the pagers. I'm going to watch for the transcript to get a quote on this, but at one point Roberts compared the policy to the legal terms you see on signs when driving into a parking garage. "We don't say that you are bound by that because nobody reads it," he said.

Quon's lawyers, on the other hand, had a lengthy dialogue with Justice Stephen Breyer about how the department could have figured out whether the pager overage charges were coming from personal use or just higher than expected official use. The easiest way to figure that out, everyone seemed to agree, was to look at the messages themselves. Quon's lawyer suggested that perhaps the department could have handed the transcripts to the officers and given them a chance to redact them before the department counted up the messages.

Several Justices seemed sympathetic to the argument that the officers have a privacy interest in the messages, but the Court may rule that the department's examination was a reasonable action even in light of that interest.

The case, Ontario v. Quon, will be decided by this summer.