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Police were right to monitor personal use of office cellphone

Monday, July 12, 2010; A14

TOWARD THE END of its 2009-10 session, the Supreme Court struck a welcome balance between the mandates of law and the dictates of common sense in a case involving the privacy rights of government employees. A California police officer, Sgt. Jeff Quon, sued his employer, the city of Ontario and the Ontario Police Department after the department discovered that he had been sending hundreds of personal and often sexually explicit text messages on his work-issued pager while on duty. Sgt. Quon argued that the police department breached his Fourth Amendment rights against unreasonable searches and seizures when a department investigator read his personal text messages. The court, in a unanimous opinion, rightly disagreed.

Several factors played into the court's decision that the search was reasonable. Sgt. Quon knew that the device he was using was work-issued and was meant to be used primarily to facilitate communications among officers. He not only used the device excessively for reasons not related to work -- of 456 messages sent one month, roughly 400 were not work-related -- but he often did so during work hours. He and others on the force had been told that their communications could be audited. Indeed, the personal e-mails were discovered during an audit to determine whether significant overages accrued by Sgt. Quon and another officer indicated that the department should change its telecommunications plan; officers were informed that they had to pay for overages. The investigator had to read the texts -- rather than just tally numbers -- to distinguish between work and non-work messages.

The police department and the city "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 M. Kennedy wrote for the court. The justices made clear that their decision applied only to government employees and only to text messaging.

Although he agreed with the conclusion, Justice Antonin Scalia chastised his colleagues for proceeding so cautiously. "Applying the Fourth Amendment to new technologies may sometimes be difficult, but when it is necessary to decide a case we have no choice," Justice Scalia wrote. "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. The-times-they-are-a-changin' is a feeble excuse for disregard of duty."

Justice Scalia is wrong on this one. It is all but impossible to accurately predict how ongoing changes in communications technology will affect all manner of issues, from privacy expectations to employer-employee relations. Holding off from making broad pronouncements in the midst of a rapidly changing technology environment is a wise display of restraint by the court.

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