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Supreme Court Hears Arguments In Employee “Sexting” Case: Written Policy Important

Posted by Eric Parzianello on April 21, 2010

Does your company have a written policy regarding the use of company cell phones or computers? The affirmative answer to that question appeared to be a significant one in a case heard by the United States Supreme Court yesterday. A decision is expected in June in the case of Quon v. Arch Wireless Operating Company and the City of Ontario, which was the subject of a January blog.

Several months after Police Officer Quon was issued a pager by the Ontario (CA) Police Department, Quon’s boss asked for a print-out of his messages because Quon was repeatedly exceeding his monthly message allowance. The review revealed that most of Quon’s texts were not work-related and many were sexually explicit in nature including ones sent to his estranged wife, his office girlfriend and a fellow officer. Officer Quon was reprimanded for sending the personal text messages. Although the department had a written policy — issued before the distribution of the pagers — warning officers that all communications on city-owned equipment were subject to review, Quon and the people he was messaging sued, claiming that the department had no right to look at the communications.

Justice Sonia Sotomayor questioned whether the boss’s 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.” Justice Antonin Scalia said the reason for the search was irrelevant to the case. “So when the — when the filthy-minded police chief listens in, it’s a very bad thing, but it’s not offending your right of privacy,” Scalia observed. A majority of the justices seemed to place great significance in the department’s written policy which would lead to a conclusion that the city 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.

A decision is not expected until June but it seems likely that if the department is successful, its written policy will be a factor in immunizing it from liability.

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