Inland police texting case goes to nation’s high court

The U.S. Supreme Court agreed Monday to hear an Ontario Police Department case that could have broad implications for how much privacy employees can expect when using electronic communication devices issued by their employers.

Three Ontario police officers and another employee sued the city after the police chief read text messages — some of which were sexually explicit — from one officer to the others.

The justices will decide on an appeal from the city over a U.S. Court of Appeals for the Ninth Circuit ruling last year that sided with the officers and found they had “a reasonable expectation of privacy.”

A ruling is expected by June.

“You’re talking about privacy rights in the workplace,” said Dieter C. Dammeier, an Upland attorney representing the officers. “It’s certainly going to have an impact on all employment.”

At issue is how much latitude employers have to regulate employees’ use of technology such as e-mail and text-messaging, said Kent Lewis Richland, a Los Angeles attorney representing the city.

In the Ontario case, in 2001 officers were issued pagers that were capable of sending text message. But they were told they should have no expectation of privacy, according to court records.

Although the city had no policy on the use of text messages it did have a policy forbidding inappropriate language in e-mails.

In August 2002, the department reviewed text messages sent by Sgt. Jeff Quon to determine how many of his messages were work-related and found that many of his messages were personal and often sexually explicit.

In its ruling last year, the 9th Circuit found that despite the city’s stated policies, the officers had an expectation of privacy because of an “operating policy” in which Quon believed he was allowed some personal use of the pager.

Quon, who has since retired from the department, was allowed to reimburse the city for charges that went beyond his monthly allotment of text messages and was told by a supervisor that as long as he did so his messages would not be audited, the appeals court said.

Appellate Judge Kim McLane Wardlaw acknowledged in her opinion that there is little to guide judges in this area.

“The extent to which the Fourth Amendment provides protection for the contents of electronic communications in the Internet Age is an open question,” Wardlaw said.

Richland said the ruling is troubling because it allows the whims of one supervisor to take precedence over the city’s official policies. In addition to those policies, officials also argued that text messages on government equipment would be subject to the California Public Records Act.

“It’s just not reasonable for plaintiffs to believe in this case (the messages) would have remained private,” Richland said.

Dammeier said text messaging today is the equivalent of a phone call and that making those messages public would be like eavesdropping on a personal phone call made by an employee.

“In the age of technology where communication is getting to be more and more non-verbal there’s got to be some level of privacy for those communications as well,” he said.

The appeals court also faulted the text-messaging service for turning over transcripts of the messages without the officers’ consent. Both the city and USA Mobility Wireless, Inc., which bought the text-messaging service involved in the case, Arch Wireless, appealed the 9th Circuit ruling.

The justices turned down the company’s appeal, only agreeing to hear the portion of the case involving the city.

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