Supreme Court to Hear Sexting Privacy Case

(Dec. 14) -- The U.S. Supreme Court said Monday that it would hear a case to clarify the extent of the rights of employers to read text messages sent and received by their employees on employer-issued equipment.

Jeff Quon, a police sergeant in Ontario, Calif., is alleged to have used a work pager to send hundreds of personal, sometimes sexually explicit, text messages to his wife, his girlfriend and another officer, The Wall Street Journal reported.

The Ontario Police Department had been investigating officers who had exceeded their plan's monthly limit for text messages and learned the specific nature of the communication after the city's wireless provider at the time, Arch Wireless, released transcripts of the exchanges, the paper said.

Quon sued the Police Department and won.


San Francisco's 9th U.S. Circuit Court of Appeals ruled that the Police Department's actions represented an unreasonable search, even though the department had issued Quon the equipment on which the messages were sent and received.

The court also said that by turning over the transcripts of the messages, USA Mobility, which now owns Arch Wireless, violated the federal Stored Communications Act, The Wall Street Journal said.

The topic of the privacy of text messaging has become more and more prominent as the technology continues to spread. From Tiger Woods to disgraced politicians to the estimated one-third of U.S. teenagers who engage in "sexting" -- the practice of sending sexually explicit pictures or messages -- Americans are discovering that digital communication is not nearly as private as they may have thought. And that is especially true of communication in the workplace.

"Employees who want to use their company's equipment to send personal messages should know they're doing so at their own risk," said Philip Gordon, a Denver-based attorney at Littler Mendelson, a firm that often represents employers involved in workplace privacy matters. "It doesn't make sense that when it's an employer who is on the contract with the cellular provider, and then gives the equipment to their employees specifically for business purposes, that the employer can't monitor the use of the device."

Gordon, who is the chair of his firm's privacy and data protection practices group, points out that, in part, the Quon case hinges on the fact that the messages were sent on a mobile device, which may or may not be covered by the Police Department's privacy policy. "If they had gone through e-mail, on the Police Department's server, there would have been no question as to the legality of reading them. The department would have had every right to review them."

One problem, and one of the central issues of the Quon case, is that as technology quickly evolves, workplace privacy policies often lag behind.

"In many cases these policies were written when there was just e-mail," Gordon said. "With the rise of new devices and communications tools, we have gray areas in the law for managers and employees alike."

Robin Bond, an attorney and the founder of Transition Strategies, a firm that represents employees on legal matters, agrees that to avoid confusion in the workplace, the court has an opportunity to show the way forward. "I think having one standard would be helpful," Bond said.

The Supreme Court is expected to rule on the Quon case by June. Until then, Bond says she'll continue to tell her clients to make sure to protect themselves.

"The right thing to do is to bring your own cell phone to work," Bond said. "That way, you do have a right to privacy, because it's your plan, your provider. Why would anyone want to use a company phone to send sexually explicit or private messages? To me, it says something about judgment."