Privacy in a New World
The Supreme Court heard arguments on Monday in a case about the privacy rights of a California police officer who sent very personal text messages on a city-issued pager. This case brings the court to a new frontier. As people use newer forms of communication, the court must ensure that privacy protections keep up.
Sgt. Jeff Quon, a member of the SWAT team in Ontario, Calif., used his pager for official business, but also sent nonwork-related messages, including some sexually explicit texts, to his estranged wife and to a girlfriend.
Ontario had a policy that Internet usage and e-mail on the city’s devices were not private, but it did not mention pagers. Sergeant Quon was told by a lieutenant that as long as employees reimbursed the cost of nonwork-related messages that put them over the wireless company’s monthly limit, their messages would not be read.
The city decided in 2002 to review pager messages to see how many were work-related and whether the limit was too low. It asked the wireless company for transcripts. Sergeant Quon and three people with whom he had messaged sued, and the United States Court of Appeals for the Ninth Circuit, in San Francisco, ruled in their favor.
The appellate court said that the lieutenant was speaking for the department. And given his statement that text messages would not be audited, if the officers paid for their overages, the plaintiffs had a reasonable expectation of privacy. It ruled that the decision to search the messages was not unreasonable at the outset, but that its scope was unreasonable.
The Ninth Circuit was correct. Sergeant Quon had a reasonable expectation that his messages were private. Under the Fourth Amendment, the city had a duty to seek less-intrusive methods of searching, and as the court noted, those methods were available. The City of Ontario could have had Sergeant Quon and others request the transcripts and allowed them to redact anything personal.
The Supreme Court should affirm the appellate court’s well-reasoned decision. If it rules for the city, it should do so in a narrow way, closely tied to the specific facts of this case.
Courts across the country have been unclear about what privacy rights apply to e-mail and texting, which are fast eclipsing postal mail and conventional telephones. The Supreme Court should make clear that the Fourth Amendment’s robust privacy protections apply just as robustly to 21st-century communication.
Editorial from The New York Times
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