Auditing Texts on City-Issued Pager OK

A police officer who used a city-issued pager to send private, sometimes sexually explicit, text messages has no right of privacy in the messages’ content, according to the U.S. Supreme Court.

However, the Court’s opinion stopped short of making a general pronouncement as to what privacy rights may exist before the role of electronic communications in society becomes clear. “Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices,” the majority wrote.

The case before the court involved a police officer on a SWAT team for the City of Ontario, California. He was issued an alphanumeric pager. On several occasions, he exceeded the number of text characters for the month allowed under the city’s contract and he paid the difference in the cost to the city. However, his superior stopped the practice and instead audited the police officer’s text messages. After reviewing two-months’ worth of messages, the police department determined that the police officer “sent or received 456 messages during work hours in the month of August 2002, of which no more than 57 were work related; he sent as many as 80 messages during a single day at work; and on an average workday, Quon sent or received 28 messages, of which only 3 were related to police business.”

The police officer argued that the audit was an unlawful search under the Fourth Amendment and that it violated his right of privacy. The Court found that the search was narrow and reasonable under the circumstances “because it was an efficient and expedient way to determine whether Quon’s overages were the result of work-related messaging or personal use.”

In a concurring opinion, Justice Stevens stated, “[I]t is clear that respondent Jeff Quon, as a law enforcement officer who served on a SWAT Team, should have understood that all of his work-related actions—including all his communications on his official pager—were likely to be subject to public and legal scrutiny.” As a result, he had only a “limited expectation of privacy in relation to this particular audit of his pager messages.”

In making its ruling, the Court observed that “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.” As a result, the Court found it “preferable to dispose of this case on narrower grounds” and not adopt sweeping policies regarding text messaging.

City of Ontario, California v. Quon, Supreme Court No. 08-1332, decided June 17, 2010.