By Robert Barnes
Washington Post Staff Writer
Friday, June 18, 2010; A01
A hesitant Supreme Court waded cautiously into a question that arises daily in workplaces and offices across the country: whether employers have the right to look over the shoulders of workers who use company computers and cellphones for personal communication.
In the first ruling of its kind, the justices said they do, as long as there is a "legitimate work-related purpose" to monitor them. But the court said it would proceed cautiously in deciding how far an employer can go in searching the "electronic sphere" that has become an inescapable part of the modern workplace.
In the case at hand, the court ruled unanimously that a police chief's search of text messages sent and received by a SWAT team officer did not violate his constitutional protection against unreasonable searches.
Even though Sgt. Jeff Quon of Ontario, Calif., had some expectation of privacy, the court said, the police department's review -- which turned up sexually explicit messages to his wife and his mistress -- was justified.
But at a time when many employers warn that they can monitor workers' use of company computers and cellphones, the court was reluctant to draw clear lines between what is private and what is not.
"Prudence counsels caution," Justice Anthony M. Kennedy wrote, arguing that the court should not use the case of an officer who sends numerous text messages to "establish far-reaching premises that define the existence, and extent, of privacy expectations" of workers using company equipment.
Quon's case may sound familiar to many workers. Even though the department told him and his co-workers that they should not expect privacy when using their pagers, they were also told that personal use would be tolerated to a certain degree. If he exceeded the monthly allotment of texts, he was told, he would have to pay the difference.
He did go over the allowed number, but his superiors tired of collecting the fees and wondered whether the plan was too limited. The police chief ordered the records from the company that provided the texting service.
After removing the texts Quon sent when he was off-duty, his bosses found that the vast majority of his texts were personal -- 400 of 456 one month. According to Kennedy's opinion, he was "allegedly disciplined."
Quon sued, saying the search violated the Fourth Amendment protections against unreasonable searches for him and those who texted him.
A district judge and the U.S. Court of Appeals for the 9th Circuit agreed with him.
But the justices said Quon should not have assumed that his text messages "were in all circumstances immune from scrutiny." Kennedy said the department's search was reasonable and, by eliminating those messages he sent while off-duty, not intrusive.
The justices said that technology may be changing faster than the courts can accommodate.
Kennedy noted that in the 1960s, "the court relied on its own knowledge and experience to conclude that there is a reasonable expectation of privacy in a telephone booth. . . . It is not so clear that courts at present are on so sure a ground."
He noted that some employers want workers to be constantly equipped with the latest technology to make them more efficient, and the bosses accept that the devices will be used for personal communication.
"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," he wrote. "That might strengthen the case for an expectation of privacy."
On the other hand, he said, cellphones and similar devices have become cheap enough that employees should consider buying their own.
Justice Antonin Scalia agreed with the court's conclusion in the case, but found Kennedy's hand-wringing opinion "exaggerated."
"The Court's implication that where electronic privacy is concerned we should decide less than we otherwise would . . . or that we should hedge our bets by concocting case-specific standards or issuing opaque opinions is in my view indefensible," Scalia wrote.
"The-times-they-are-a-changin' is a feeble excuse for disregard of duty."
Joshua Dressler, an Ohio State University law professor, said the court decided wisely "to punt," and not to "make broad announcements regarding our rights in this new world in which we live."
At the same time, lawyers who specialize in workplace issues said the court's decision does define some broad parameters for employers and workers.
Christopher A. Parlo, a New York lawyer, said employers should take from it that workers have some expectation of privacy in the work context, but that clear policies are needed and employers can conduct reviews of documents and communications if there is a work-related reason.
But he also said it may be good that the court did not try to be more specific.
"It was very wise of the court not to delve too deeply into a world of technology that they admitted at oral argument was a bit foreign to them," Parlo said in a statement.
"Leaving it to lower courts across the country to shape the law in this area will allow a broader cross-section of the population, particularly with respect to age, to weigh in on these important issues."
The case is City of Ontario v. Quon.