Supreme Court takes up Personal Texts on Employer's Device

In City of Ontario v. Quon, a SWAT team was issued pagers, and allowed to use them partially for personal reasons so long as the team-members paid for the personal use. This was in contradiction to standard procedure: employees had no privacy rights to information stored on city equipment. Parsing out the personal usage from the company usage turned out to be too time consuming for the lieutenant in charge, and the city ordered copies of text-messages to evaluate whether to increase the message plan.

The transcripts revealed long sexual exchanges between Quon and two women. Quon paid for the personal messages, but was reprimanded by his department. Quon sued for breach of privacy. The lower courts found that he had no reasonable expectation of privacy in the phone. Now, he's taken the case to the Supreme court on these issues:

1. Whether a SWAT team member has a reasonable expectation of privacy in text messages transmitted on his SWAT pager, where the police department has an official no-privacy policy but a non-policymaking lieutenant announced an informal policy of allowing some personal use of the pagers;
2. Whether individuals who send text messages to a SWAT team member’s SWAT pager have a reasonable expectation that their messages will be free from review by the recipient’s government employer. (Source, SCOTUS Wiki.)

The Supreme Court heard oral argument in April on these issues (apparently stumbling around the technological challenges of the medium), and is expected to issue its decision sometime soon. Some take-aways from the case thus far include (thanks for the heads up):

1. An ISP's inspection of a company's communication system without notice likely violates the Stored Communications Act. Here, the Ninth Circuit Court of Appeals held that it did (issue not up for review here).
2. Preparing and applying use-policies for company owned equipment is vital. If one had been in place and applied properly, Quon's case never would have gotten this far.
3. Companies should ensure that only qualified individuals inform employees of use policies. The lieutenant should not have been in a position to modify the city's use policy here.

Contact me for a review of your "acceptable use" policy to make sure it covers email, pagers, smart phones, texting, mobile devices, and even use of Internet-based media.