The Supreme Court said Thursday a California police officer’s privacy was not breached when his superiors read transcripts of hundreds of his text messages. The Ontario Police Department was looking at the transcripts as part of an effort to determine whether it was providing an adequate quota of monthly pager texts to its officers.

The SWAT officer, Jeff Quon, was exceeding the limit for months, and his superiors wanted to know why. Quon was originally paying the extra fees out of his own pocket. He sued after the inquiry, alleging his privacy was violated. Many of the text messages were sexually explicit.

"The city and OPD had a legitimate interest in ensuring that employees were not being forced to pay out of their own pockets for work-related expenses, or on the other hand that the city was not paying for extensive personal communications," Justice Anthony Kennedy wrote for the 9-0 court, its first ruling directly addressing text-message privacy (.pdf) in the work context.

Silicon Valley privacy attorney Christine Lyon said the high court's analysis was not founded on the police department's policy that text messages were the department's property. Lyon, who was not involved in the case, said even if the department did not have such a privacy policy, the outcome likely would have been the same.

"What they're saying, even if the employee had an expectation of privacy, it can be effectively trumped," Lyon said in a telephone interview.

As for the scope of the text-message search, Kennedy said, "reviewing the transcripts was reasonable because it was an efficient and expedient way to determine whether Quon's overages were the result of work-related messaging or personal use."

The decision reversed the San Francisco-based 9th U.S. Circuit Court of Appeals that ruled that the search was "legitimate" but "not reasonable in scope."

The court of appeals said the audit could have been conducted by allowing Quon to redact the transcript of the messages before they were handed over to his superiors, or the department could have warned him that if he went over the limit again, his messages would be audited.

The Supreme Court did not agree. "The search was reasonable, and the court of appeals erred by holding to the contrary," the unanimous court ruled.

Still, the justices suggested that the convoluted facts of the case, including Quon being allowed at one point to pay for his overages, makes this lawsuit not the best one to decide future employee-employer privacy disputes.

"Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices," Kennedy wrote.

What's more, Kennedy suggested that privacy in the modern age has more than one meaning.

"Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self identification. That might strengthen the case for an expectation of privacy. On the other hand, the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cell phones or similar devices for personal matters can purchase and pay for their own. And employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated. "

Photo: ePublicist/Flickr

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