Supreme Court case - text messaging & privacy

[Jean]

The following is an artcile on a case coming before the Supreme Court next week. While I expect (as the author does) that the court will rule very specifically on the circumstances surrounding this case (probably around the issue of whether the police department gave notice to the employee), this is an interesting area to keep an eye on. The implications regarding privacy are significant. Additionally, the results may not only change how people use technology at work and on employer issued equipment, but it may very well influence the direction of future technology development (hardware, firmware, OS and applications.)

High court goes high tech: Justices to hear employee texting case

Most of us have done it: Sent personal emails from the company computer, texted a friend or significant other on the BlackBerry they gave you for work. No harm, no foul, you say — our lives are so crazy these days that it's hard not to blur the lines between the personal and the professional. Of course that's true, but company time isn't the only issue — what about your privacy? What if the boss reads your messages? Would you be embarrassed — or worse? Does your employer even have that right?

The rules surrounding workplace communication in the digital age are pretty fuzzy; so fuzzy, in fact, that we still largely rely on parts of a federal law enacted in 1986 — back when fax machines were all the rage — to govern our privacy on technologies we use today. Calling someone on the phone or sending them postal mail isn’t remotely the same as sending a text or an email, so as technology develops, so must the laws that protect the privacy of our communication.

"[The laws don't] really make any sense in the modern era," says Jennifer Granick, civil liberties director of the Electronic Frontier Foundation, which advocates for free-speech rights in digital communication. "It's just not the way the technology evolved."

Important court battles being waged all over the country are helping to shape this area of law, but one case has made it all the way to the top of the legal system.

At issue in City of Ontario v. Quon is whether a SWAT officer — a public employee — had a reasonable expectation of privacy when sending personal text messages on a police-department-owned pager. The official policy at the Ontario, Calif., police department had prohibited personal use of things like email and the Internet at work, and employees were explicitly told they should have no expectation of privacy in that regard, but the policy never said anything about text messages.

At some point, pagers were issued to members of the SWAT team, who were later told at a meeting (i.e. not in writing) that texts sent and received on them would be considered by the department to be email, and therefore subject to monitoring or audit. The officers were also told they'd be responsible for paying any charges incurred when going over the character limit in the department’s contract with the pager service. Eventually this arrangement eased into an informal understanding between officers and their superiors that as long as they paid the extra charges, the department wouldn't look at their messages.

Sgt. Jeff Quon went over the monthly character limit a few times, but he faithfully paid the overages. He also sent text messages — sometimes sexually explicit ones — to his wife … and to a co-worker with whom he was having an affair. As he understood department policy, his superiors would not be reading his messages. But the department — tired of acting like a bill collector for overage charges — later changed its mind and requested Quon’s transcripts from the wireless service provider. (Quon was one of the officers who had exceeded the character limit more than once.) After the provider, Arch Wireless, provided the transcripts, Quon's superiors were able to read his, ahem, personal messages.

Quon and others, including his wife, who was not a department employee, sued, claiming the police department had violated their Fourth Amendment right against unreasonable search. (In other words, the suit involves not only the employee's privacy rights but those of the people sending and receiving messages to and from him.) They also sued Arch Wireless, claiming the provider had violated a federal statute when it gave the police department Quon's transcripts without his permission.

After losing their battle in federal district court, Quon and his co-plaintiffs prevailed in the 9th U.S. Circuit Court of Appeals in California, with that court ruling they all had a reasonable expectation that the department would not read the text messages. And now it will be up to the Supreme Court to decide if the city violated the Fourth Amendment, which protects people against unreasonable search and seizure by the government. (The high court will not be hearing a separate appeal concerning the wireless service provider.)

Although the ruling is likely to be narrow (sticking strictly to legal questions concerning the public sector), it will come at a time when there is great need for the high court to shed light on how the Fourth Amendment affects electronic communication. Hard to believe that when this case comes before the justices on Monday, it will be the first time the Supreme Court will consider how the Constitution affects so much of what we now take for granted in our workplace communications — indeed, many of us hardly pick up a phone anymore.

It’s difficult to see where the high court will go with this legally nuanced case, especially because there are so few similar cases to provide guidance, says Susan Freiwald, a law professor at the University of San Francisco who teaches cyberspace and information privacy law.

The ideological makeup of the court doesn’t help much either.

“Ideas about privacy don’t always correlate to traditional labels of conservative or liberal,” Freiwald notes. “You don't really know how the justices are going to feel and how those positions translate.”

Whether this case has a broad or narrow ruling, the hope is that it will be a guide for both employers and employees as advancing technology makes it easier for us to blur the lines between private and professional communication.

The court likely won't release its opinion until June, but for now, what’s the advice? A little bit of common sense, of course.

“Employees in general need to be a lot more careful about what they commit to writing,” says Robert Brownstone, a lawyer who advises employers on information privacy. “And if they do, they should not use their work computer, because that's a whole different level of privacy.”
— Laura E. Davis

[DavidRoss]

It's had for me to imagine The Court ruling otherwise than that the employer has a right to access whatever an employee does with equipment owned by the employer and provided for the express purpose of facilitating the employee's work--that is, in the absence of a contract to the contrary. Of course, one area The Court has fallen down in over the years is in honoring contracts.

[Jean]

I think at first blush that would seem to make sense. However, this would lead to a person having to have two phones, perhaps two PCs/laptops, etc. That segregation at the hardware level, is becoming less and less practical. Especially as unified messaging and computing becomes more an actual reality.
It would stand to reason then that employer would not be welcome to call employees on their phones or send emails to a personal email address etc.

Also, there is no real argument that the employer has a right to prohibit personal messaging during the workday, but on ones private personal time? I think that's unreasonable. Especially when, as in this case, the employee paid for any permitted over usage.

Specific to this case, the department had told employees that they could not use the equipment for personal use but then they proceeded to 1) ignore the policy, creating by defauly another policy, and 2) creating a process for those cases where the employee paid for their own usage implying that there was an expectation that employees would use the devise for personal messaging. I think that the employee in this case has a very strong argument.

Also at issue here is whether the carrier should have fiven text transcripts to the employer on demand. That's a stickier issue as the police department is the client of record. Still, it raises privacy issues as to whether the author of the text messages is owed a duty.

Further is the wife's issue in this case. She is on the other end of these messages and has some expectation of privacy as well.

Not so straight forward.

[Ralph]

It's hardly unusual for a person to have two cell phones. The bulky Motorolas of an earlier period are gone. That isn't a serious issue, legally or practically.

I believe the Court will sustain the police department's policy which was clearly articulated. Employees have zero privacy rights with regard to workplace computers. I can't imagine a rational basis for treating text messages on department provided cell phones differently.

About a week ago the NYPD reversed its policy forbidding cops from using personal cell phones while on duty. In that instance there is clearly an expectation of privacy and a search warrant would be required to intercept a cop's calls.

[jack stowaway]

I recognise that there is a sound legal basis for ruling that ownership of the means equates to ownership of usage, but surely the Justices will recognise that, as Jean pointed out, one consequence of technology is that work and private lives are inextricably bound up in the nexus of time and communication.

Is there an employee anywhere in the world (including Supreme Court Justices) who has not used his/her work computer or telephone to send a personal message? In this sense the law is like the equally unenforceable prohibition on personal recording --for distribution to friends, of tv programs or purchased music.

Where I work we are well aware, and constantly reminded, that all email commmunications are open to scrutiny, but there is also the implicit consent on the part of my employer that 'honest' personal usage is permitted as unavoidable --such as catching up with a friend or spouse, while 'dishonest' use, such as surfing for porn, is prohibited.

A question to be considered is whether the content of private messages should be subject to the same standard; i.e. should personal communications between spouses be differentiated as 'dishonest' or 'innocent' usage depending on the employer's understanding of those terms.

For example, should there be a difference between phoning a spouse to cancel a dinner and phoning that same spouse with a sexual request?

It seems to me that any ruling is going to have to recognise a line between 'honest' and 'dishonest' entitlement.

[Ralph]

I recognise that there is a sound legal basis for ruling that ownership of the means equates to ownership of usage, but surely the Justices will recognise that, as Jean pointed out, one consequence of technology is that work and private lives are inextricably bound up in the nexus of time and communication.

Is there an employee anywhere in the world (including Supreme Court Justices) who has not used his/her work computer or telephone to send a personal message? In this sense the law is like the equally unenforceable prohibition on personal recording --for distribution to friends, of tv programs or purchased music.

Where I work we are well aware, and constantly reminded, that all email commmunications are open to scrutiny, but there is also the implicit consent on the part of my employer that 'honest' personal usage is permitted as unavoidable --such as catching up with a friend or spouse, while 'dishonest' use, such as surfing for porn, is prohibited.

A question to be considered is whether the content of private messages should be subject to the same standard; i.e. should personal communications between spouses be differentiated as 'dishonest' or 'innocent' usage depending on the employer's understanding of those terms.

For example, should there be a difference between phoning a spouse to cancel a dinner and phoning that same spouse with a sexual request?

It seems to me that any ruling is going to have to recognise a line between 'honest' and 'dishonest' entitlement.

*****

I don't agree. First, most persons with work provided phones have their personal cell phones too. Second, when an employer makes it clear that communications may be monitored an employee can hardly howl foul when action is taken based on an inappropriate message.

I doubt that most employers have a 100% no personal use policy anymore than they do with personal emails on workplace computers. But the legal right of an employer to monitor workplace phones and computers, even using keystroke recorders, is clear.

Note that the Supreme Court case involves police officers so this is a Fourteenth Amendment issue which,of course, could not be raised in private sector employment.

[jack stowaway]

I take your point, but I still find the blanket nature of the provision troubling. For example, I can agree that employers have the right to monitor employee private communications; where I have trouble is with the notion of 'inappropriate' messages.

Perhaps I am splitting hairs, but consider the following scenarios:

An employee sends a sexual cartoon to another (consenting) party. Clearly inappropriate in the eyes of most employers.

An employee counsels his overseas daughter, by email, to have an abortion. The employer, a pro-life advocate, decides the message is inappropriate and takes action accordingly.

What is the standard used to assess 'inappropriateness' in the above example?

[Jean]

It's hardly unusual for a person to have two cell phones. The bulky Motorolas of an earlier period are gone. That isn't a serious issue, legally or practically.

I believe the Court will sustain the police department's policy which was clearly articulated. Employees have zero privacy rights with regard to workplace computers. I can't imagine a rational basis for treating text messages on department provided cell phones differently.

About a week ago the NYPD reversed its policy forbidding cops from using personal cell phones while on duty. In that instance there is clearly an expectation of privacy and a search warrant would be required to intercept a cop's calls.

Ralph,

I rarely disagree withyou, but I must in this case.
Yes, the courts have clearly established that an employer may monitor keystrokes, data, messages, etc on employer provided devices, in the workplace, during work hours. Those precedents will stand only so long as the technology remains stagnent, which it does not.

It is not as clear how much control an employer has on poratble devices, away from the workplace and during personal time.

The surface has not even been scratched as who owns the data, who can access it, and what they can do with it. Is it the user device owner or the person in posession? Is it the consumer account owner? Is it the carrier, the person originating the message, the recipient, or the server owner where the data resides? In the course of sending a message the actual data may be captured and saved, even if only for back-up processing purposes, at multiple points. Then what?

I promise, there are portable devices and applications in development which will permit multiple carriers and the condolidated delivery of data which can then be organized and segregated by the end user. Consumers will not tolerate multiple devices when the technology does not make it necessay. This is a market fact and evidenced by the introduction of email and internet conectivity on phones as a first step.

Consumers (and by extension their employers) in this country demand anytime, anywhere, any data, realtime availaibility. And it must be simple, low cost, reasonably convenient in size, and a single device. That is the holy grail and it is coming (with consolidated billing.)

The law simply cannot persist in viewing this issue from the perspective of the device. To do so would be allowing the tail to wag the dog.

In this specific case, I suspect that the court will not be peeking too far under the covers, but the day when it is forced to begin to do so is not far off. In this case, public employee/department notwithstanding, I think the employer behave in such an ambiguous manner that it is not such a cut and dried case. (I would give my last dime.. if it weren't already owed to the bank... to be allowed to help develop the arguments that will be used.)

[DavidRoss]

The law simply cannot persist in viewing this issue from the perspective of the device. To do so would be allowing the tail to wag the dog.

It's not the perspective of the device, but of the device owner. The principle's no different from that involved in using any other employer-owned equipment. An employer might not mind you making a copy of your grandmother's peach pie recipe for a colleague on his copy machine, but draws the line and exerts his right of ownership at photocopying a hundred flyers advertising your weekend yard sale. Or approve using the vehicle provided for your business use to run to the grocery store for some enchilada sauce, but disapprove of using it to taxi your old college buddies to Ensenada for a weekend of drunken debauchery. The Court might wish to revisit traditional property rights, but it sure seems like a waste of their time to me. [insert shoulder-shrugging emoticon here]

[jbuck919]

I doubt that most employers have a 100% no personal use policy anymore than they do with personal emails on workplace computers.

Just for everybody's info, the federal government does have such a rule. It is not possible to enforce it 100%, but employees who violate it do so at their own risk.

[Ralph]

I doubt that most employers have a 100% no personal use policy anymore than they do with personal emails on workplace computers.

Just for everybody's info, the federal government does have such a rule. It is not possible to enforce it 100%, but employees who violate it do so at their own risk.

*****

I get personal emails all the time from former students who are U.S. attorneys or JAG lawyers. I think that rule has gone the way of the you can't time shift with a VCR one.

[Ralph]

It's hardly unusual for a person to have two cell phones. The bulky Motorolas of an earlier period are gone. That isn't a serious issue, legally or practically.

I believe the Court will sustain the police department's policy which was clearly articulated. Employees have zero privacy rights with regard to workplace computers. I can't imagine a rational basis for treating text messages on department provided cell phones differently.

About a week ago the NYPD reversed its policy forbidding cops from using personal cell phones while on duty. In that instance there is clearly an expectation of privacy and a search warrant would be required to intercept a cop's calls.

Ralph,

I rarely disagree withyou, but I must in this case.
Yes, the courts have clearly established that an employer may monitor keystrokes, data, messages, etc on employer provided devices, in the workplace, during work hours. Those precedents will stand only so long as the technology remains stagnent, which it does not.

It is not as clear how much control an employer has on poratble devices, away from the workplace and during personal time.

The surface has not even been scratched as who owns the data, who can access it, and what they can do with it. Is it the user device owner or the person in posession? Is it the consumer account owner? Is it the carrier, the person originating the message, the recipient, or the server owner where the data resides? In the course of sending a message the actual data may be captured and saved, even if only for back-up processing purposes, at multiple points. Then what?

I promise, there are portable devices and applications in development which will permit multiple carriers and the condolidated delivery of data which can then be organized and segregated by the end user. Consumers will not tolerate multiple devices when the technology does not make it necessay. This is a market fact and evidenced by the introduction of email and internet conectivity on phones as a first step.

Consumers (and by extension their employers) in this country demand anytime, anywhere, any data, realtime availaibility. And it must be simple, low cost, reasonably convenient in size, and a single device. That is the holy grail and it is coming (with consolidated billing.)

The law simply cannot persist in viewing this issue from the perspective of the device. To do so would be allowing the tail to wag the dog.

In this specific case, I suspect that the court will not be peeking too far under the covers, but the day when it is forced to begin to do so is not far off. In this case, public employee/department notwithstanding, I think the employer behave in such an ambiguous manner that it is not such a cut and dried case. (I would give my last dime.. if it weren't already owed to the bank... to be allowed to help develop the arguments that will be used.)

*****

Jean,

You're mixing avocados with breadfruit. You may very well be right that emerging technology requires new directions in policy that in some instances must be enscounced in law. But the case under discussion here is a CONSTITUTIONAL issue. The plaintiffs are alleging the violation of a Constitutional right. I do not believe there is a credible basis either in existing law or in arguing for a major shift for their view.

My sense is that the question of personal sue of employer-provided technology really needs to be dealt with within the employment context rather than by appealing to constitutional law or seeking protection from statutes for private employment settings.

[Ralph]

Court takes up public employees' privacy case
MARK SHERMAN
From Associated Press
April 19, 2010 6:17 PM EDT

WASHINGTON (AP) — The Supreme Court appears likely to rule against public employees who claimed a local government violated their privacy by reading racy text messages they sent on their employers' account.

Several justices said Monday that the employer, the Ontario, Calif., police department, acted reasonably in monitoring the text messages in view of its written policy warning employees they have no guarantee of privacy in the use of office computer and electronics equipment.

Justice Stephen Breyer said he didn't see "anything, quite honestly, unreasonable about that."

While the case involves government workers, the decision could have broader privacy implications as courts continue to sort out privacy issues in the digital age. Many employers, including Ontario, tell workers there is no guarantee of privacy in anything sent over their company- or government-provided computers, cell phones or pagers.

The case arose when the Ontario department decided to audit text message usage to see whether its SWAT team officers were using them too often for personal reasons. Three police officers and another employee complained that the department improperly snooped on their electronic exchanges, including many that were said to be sexually explicit.

An Ontario police official had earlier informally told officers that no one would look further if officers personally paid for charges above a monthly allowance.

The 9th U.S. Circuit Court of Appeals in San Francisco said the informal policy was enough to give the officers a "reasonable expectation of privacy" in their text messages and establish that their constitutional rights had been violated. The appeals court also faulted the text-messaging service for turning over transcripts of the messages without the officers' consent. The court declined to hear the appeal of USA Mobility Wireless, Inc., which bought the text-messaging service involved in the case.

The Obama administration is backing the city, arguing that the written policy, not any informal warning, is what matters. "The computer help desk cannot supplant the chief's desk. That simple, clear rule should have decided this case," Justice Department lawyer Neal Katyal said.

More broadly, Katyal said, the appeals court ruling calls into question policies put in place by governments across the country. "Thousands of employers rely on these policies, and millions of employees," he said.

The court could take a very narrow path out of the case. Because the employees involved are police officers, several justices said that their communications might be sought by defense lawyers in criminal cases.

"I mean, wouldn't you just assume that that whole universe of conversations by SWAT officers who were on duty 24/7 might well have to be reviewed by some member of the public or some of their superiors?" Justice John Paul Stevens said.

Justice Sonia Sotomayor wondered whether the reason for looking at the messages mattered. "Let's assume that in this police department, everyone knew, the supervisors and everyone else, that the police department people spoke to their girlfriends at night," Sotomayor said. "And one of the chiefs, out of salacious interest, decides: I'm going to just go in and get those texts, those messages, because I just have a prurient interest."

It wouldn't matter, said Kent Richland, the city's lawyer, and Justice Antonin Scalia chimed that he agreed. "So when the filthy-minded police chief listens in, it's a very bad thing, but it's not offending your right of privacy. You expected somebody else could listen in, if not him," Scalia said.

Chief Justice John Roberts was alone in asking questions that suggested he would side with the officers. Roberts said the department might have allowed officers to black out any messages they were willing to pay for, providing an accurate picture of text message usage without compromising privacy.

The argument also displayed the limits on the justices' mastery of modern communications devices as Roberts tried to figure out the role of the text-messaging service in enabling an exchange between two people.

"I thought, you know, you push a button; it goes right to the other thing," Roberts said.

"You mean it doesn't go right to the other thing?" Scalia said.

A decision is expected later this year.

The case is City of Ontario v. Quon, 08-1332.

[slofstra]

The main issue is whether an employer can monitor an employees' messages, isn't it? A secondary issue is the use of employer resources for private messages. Most employers will turn a blind eye to limited personal use though, as long as they can maintain the right to view or access those messages. A third issue raised here is how employers should regulate what kind of personal uses are permissible. I don't see the relevance of that to this case, but I might be missing something.

This issue came up a few years ago when one of my employees left and I asked that his incoming email be automatically routed to my Inbox. The question of privacy was raised, but I had made it clear that company email was for company business, any other use was at your own peril and was not private. Since I needed to deal with customer and prospect emails coming into that employee's Inbox I felt that my action was warranted.

With the advent of web clients for email the problem has largely gone away. You can access your private gmail account at work, and the company has no way of viewing the proceedings, at least not without getting into some really low level monitoring. And for voice, I find that most people carry two cell phones today, also, one for work and one for personal use.

[jbuck919]

The main issue is whether an employer can monitor an employees' messages, isn't it? A secondary issue is the use of employer resources for private messages. Most employers will turn a blind eye to limited personal use though, as long as they can maintain the right to view or access those messages. A third issue raised here is how employers should regulate what kind of personal uses are permissible. I don't see the relevance of that to this case, but I might be missing something.

This issue came up a few years ago when one of my employees left and I asked that his incoming email be automatically routed to my Inbox. The question of privacy was raised, but I had made it clear that company email was for company business, any other use was at your own peril and was not private. Since I needed to deal with customer and prospect emails coming into that employee's Inbox I felt that my action was warranted.

Evidently something in your post caused it to be bumped to the mods, who took out the dirt you intended to share about this employee.

With the advent of web clients for email the problem has largely gone away. You can access your private gmail account at work, and the company has no way of viewing the proceedings, at least not without getting into some really low level monitoring. And for voice, I find that most people carry two cell phones today, also, one for work and one for personal use.

Schools use filters, and these usually block access to webmail. Any employer could do the same thing if he wanted to.

[slofstra]

The main issue is whether an employer can monitor an employees' messages, isn't it? A secondary issue is the use of employer resources for private messages. Most employers will turn a blind eye to limited personal use though, as long as they can maintain the right to view or access those messages. A third issue raised here is how employers should regulate what kind of personal uses are permissible. I don't see the relevance of that to this case, but I might be missing something.

This issue came up a few years ago when one of my employees left and I asked that his incoming email be automatically routed to my Inbox. The question of privacy was raised, but I had made it clear that company email was for company business, any other use was at your own peril and was not private. Since I needed to deal with customer and prospect emails coming into that employee's Inbox I felt that my action was warranted.

Evidently something in your post caused it to be bumped to the mods, who took out the dirt you intended to share about this employee.

With the advent of web clients for email the problem has largely gone away. You can access your private gmail account at work, and the company has no way of viewing the proceedings, at least not without getting into some really low level monitoring. And for voice, I find that most people carry two cell phones today, also, one for work and one for personal use.

Schools use filters, and these usually block access to webmail. Any employer could do the same thing if he wanted to.

Well, if it's dirt you want. I also had a network admin at a client come to me with web logs showing that a certain employee was surfing a lot of porn at work. This was in the earlier days of Internet access so over 10 years ago. He wanted to inform management and have the employee censured. As the company did not even have a policy on Internet use, we worked on establishing and publishing a policy. We also told the employees that their surfing behaviour was being logged. The abuse stopped. To this day no one knows about this other than the admin and me.
But most employees in most companies do not know the extent to which their surfing is tracked and monitored by management. Managers in many companies receive confidential summary reports on employees' Internet habits. They do not discuss the particulars with employees as this will blow their cover. The information is useful in assessing employee motivation and interest.