by Roger W. Palek, WPPA Staff Attorney
On June 17, 2010, the United States Supreme Court gave a very clear warning to public employees who use employer-provided phones and pagers for personal use:
If you don’t want your employer to read your texts use your own phone!
The case, City of Ontario v. Quon, No. 08-1332, involved an officer who used a pager issued to him by the police department to send and receive messages that were, according to the trial judge, “to say the least, sexually explicit in nature.” The justices unanimously upheld the department’s right to read the personal, sometimes sexually explicit messages on the government-owned pager, saying the search did not violate the officer’s constitutional rights.
In the case, a city policy on computer, internet and e-mail explicitly said that the city had the right to monitor such communications. The policy did allow “light personal communications” but that “users should have no expectation of privacy or confidentiality.” The policy did not specifically apply to texts. The officer argued that an informal policy issued by his supervisor that did apply to texts permitted personal messages so long as the employees responsible paid for any charges beyond the plan maximum. The supervisor changed the policy and the department’s internal affairs audited the officer’s texts and discovered the explicit messages. The officer, along with his wife, mistress, and a fellow officer friend of his, all of whom had exchanged texts with him, claimed that their Fourth Amendment rights had been violated.
In its decision the Court assumed (but did not specifically hold) that, while the officer had a reasonable expectation of privacy in the texts, the city’s search was not unduly intrusive. The Court held that there was a “legitimate work-related purpose” for the text audit. It further held that the city “had a legitimate interest in ensuring that employees were not being forced to pay out of their own pockets for work-related expenses, or on the other hand that the city was not paying for extensive personal communications.” The Court did not specifically address the question of the rights of the other individuals who were involved in the texting exchanges.
Although the decision is fairly narrow, it does provide us with a clear warning as the Court wrestles with the privacy implications of public employees in the digital era. While its decision preserved the Fourth Amendment protection against unreasonable searches and seizures, it also gave some very specific guidance on what is reasonable. The decision allows personal texts on public employer-owned electronic equipment to be read by the public employer if it has a legitimate business reason to do so. Preventing a public employer from paying for obscene personal messages clearly falls into that definition.
It is not unusual for WPPA members to use employer electronic device for personal communications. This decision reinforces the need for basic common sense when doing so. The bottom line is that you should never send any electronic communication through such a device without an expectation that it could be read by the public employer and subject you to potential discipline if its content is inappropriate. There are better times and means to engage in such private personal conversations.
Please feel free to contact your WPPA business agent with questions on this issue.