U.S. Supreme Court: How private are employee texts, e-mails?

WASHINGTON, Dec. 27 (UPI) -- How far can any employer go to look over an employee's shoulder -- opening and reading very private texts or e-mails between employees -- even if the messages were sent on employer-owned equipment?

The U.S. Supreme Court appears poised to answer at least part of that question in the first case dealing with constitutional privacy for electronic communications.

The thought that employers may be peeking at millions of dirty jokes, sexual come-ons, flirtations and complaints about bosses is enough to send a big chill creeping through the workplace. And private sector employees may have even less legal privacy than the 20 million or so federal, state and local employees in the United States.

But employees, especially government employees, will have to wait a few months for at least a partial ruling on their privacy.

The justices have agreed to hear argument sometime later this term in the case of Ontario vs. Quon. Strictly speaking, the case involves only government employees. Analysts appear divided on whether any eventual Supreme Court ruling will affect separate cases involving employees in the private sector as well.

At the core of the case is the Fourth Amendment, which bans unreasonable searches and seizures -- violations of reasonable expectations of privacy. But that restriction is usually on government action, not the action of private employers.

Of more interest to private sector employees would be an appellate court's analysis in the case of federal law rather than the Constitution on the status of Ontario's service provider, Arch Wireless.

"Congress passed the Stored Communications Act in 1986 as part of the Electronic Communications Privacy Act," the appeals court said in its opinion."The SCA was enacted because the advent of the Internet presented a host of potential privacy breaches that the Fourth Amendment does not address. ... Generally, the SCA prevents 'providers' of communication services from divulging private communications to certain entities and/or individuals."

The appeals court concluded a trial judge wrongly dismissed Arch Wireless from the case due to its claim to be a "remote computing service" -- essentially just a storer of messages -- instead of an "electronic communication service" for the city.

The appeals court concluded Arch Wireless was an "electronic communication service."

"When Arch Wireless released to the city the transcripts of (the police officers')," the appeals court said in its opinion, "Arch Wireless potentially ran afoul of the SCA. This is because both an ECS and RCS can release private information to, or with the lawful consent of, 'an addressee or intended recipient of such communication' ... whereas only an RCS can release such information 'with the lawful consent of ... the subscriber.' ... It is undisputed that the city was not an 'addressee or intended recipient,' and that the city was a 'subscriber.'"

Complicated, but the language applies to all employees or employers affected by the SCA, not just the government.

The respected Nolo Employment Law Blog says, "Although the Quon case involves a government employer, it raises a question that comes up all the time in both private and public workplaces: Are there limits to how far employers may go in monitoring their employees' electronic communications?"

In contrast, The New York Times -- while conceding that an appellate court said the dispute opens "a new frontier in Fourth Amendment jurisprudence" -- opines that its effects may be narrow, especially given the Supreme Court's propensity to rule as narrowly as possible.

Still, the Times said, a Supreme Court decision may give "hints about its attitude toward privacy in the Internet more generally," and the newspaper cites the trial judge in the case, U.S. Judge Stephen Larson. In declining to dismiss Quon's challenge, Larson rhetorically asked where the legal boundaries of employee privacy are in an "electronic-communication age, one in which thoughts and ideas that would have been spoken personally and privately in ages past are now instantly text-messaged to friend and family via hand-held, computer-assisted electronic devices?"

Court documents show the facts in the case: The Ontario (Calif.) Police Department had a formal policy under which it could monitor employee's electronic messages, and warning employees they should have no expectation of privacy.

Individual members of the department's SWAT team received city-provided pagers. Officially SWAT members were responsible for charges when text message characters exceeded 25,000 a month. Unofficially, a lieutenant told the SWAT team members that if they paid for overages, messages would not be monitored.

However, the police chief eventually asked for an audit of the messages. The audit found that in one month in 2002 Sgt. Jeff Quon sent more than 450 text messages, only 57 related to official business. A trial judge said many of the private messages were "sexually explicit," the Times reported.

Quon and three other officers sued, claiming violations of their Fourth Amendment rights. A panel of the 9th U.S. Circuit Court of Appeals agreed with the officers, and the city and its service provider asked the Supreme Court for review.

Their successful petition asked the high court in part to decide whether a warrantless search by a government employer is permissible under the circumstances in Ontario, even if government employees have an expectation of privacy, whether the audit was permissible under the official department policy, and whether any individual who sends messages to a SWAT team member on a SWAT pager has a reasonable expectation of privacy.

The Supreme Court should rule in the case before the justices retire for the summer recess in late June. Some see a typical 5-4 split among the nine justices, with the usual conservative victory.

But Slate's Double XX Blog ("what women really think"), after bemoaning what it calls a thread of rulings in favor of government, predicts the margin of victory in Quon might be even bigger.

New Justice Sonia Sotomayor is considered a reliable member of the high court's four-member liberal bloc. But when she was an appellate judge in New York, she wrote a 2001 opinion rejecting a Fourth Amendment challenge to an employer's search of an employee's computer.

Sotomayor ruled the search was reasonable because of the employer's need "to investigate allegations of misconduct as balanced against the modest intrusion caused by the searches," Slate's blog reported.

The analysis said in her use of balancing interests in favor of employee discipline, "Sotomayor dealt a crushing blow to digital privacy rights."