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Private Text Messages? Supreme Court May Decide Whether “Exhibitionists” Entitled to Privacy

Posted by Eric Parzianello on January 20, 2010

An employer provides cell devices to its employees who use them, in part, for personal text messages. Can the employer obtain access to the messages and review them? On December 14, 2009, the Supreme Court accepted the case of Quon v. Arch Wireless Operating Company and the City of Ontario, and will decide in the Spring.

The Ninth Circuit Court of Appeals in California held that a police officer had a right to privacy regarding the texts he sent on his department-issued pager after his chief discovered sexually explicit messages to his girlfriend. That court said the lack of any suspicion of wrongdoing on the part of the officer violated Fourth Amendment protections against unreasonable searches when the police chief obtained transcripts of the messages from the company that provided the texting service and read them. The case resulted in a strong difference of opinion among the circuit’s judges. When the full panel of the court decided not to reconsider the decision, a 10-page dissent calling it “contrary to the dictates of reason and common sense” likely piqued the interest of the Supreme Court.

The ruling was the first of its kind and observed that the “recently minted standard of electronic communication via e-mails, text messages, and other means opens a new frontier in Fourth Amendment jurisprudence that has been little explored.” The employer argued that an “employee’s expectation of privacy must be one that society is prepared to consider reasonable under the operational realities of the workplace.” An interesting recent op-ed column in the Washington Post acutely noted that the employee’s insistence of privacy in such a situation: “is the paradox of the cyber era: [we are a] nation of exhibitionists demanding privacy.”

While this case involves public employees, the Supreme Court’s decision could provide a blueprint for private employers in dealing with employee text messages. We will be watching it with great interest.

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