Workplace Privacy, the Supreme Court, and Inexcusable Waste

This spring, the U.S. Supreme Court will hear a case to determine whether an audit of text messages sent by a public employee using his employer's messaging system was constitutional. When I think of all the crucial cases the Supreme Court has refused to hear over the years-and on the very day it agreed to hear this case -- it just blows my mind.


On Dec. 14, the Supreme Court said it would hear a case involving Jeff Quon, a SWAT police officer working for the city of Ontario, Calif. The case stems from Quon's claim that a 2002 audit of his city-owned pager violated his constitutional right to privacy. The problem is that the 9th Circuit Court of Appeals ruled in favor of Quon-a ridiculous ruling that the Supreme Court really had no choice but to review.


How all of this could have happened is mind-boggling, given the widely accepted principle that there is no such thing as private communications conducted on your employer's systems. Perhaps you're thinking that the city of Ontario didn't have such a policy in place. Wrong. According to an article on the Web site of the Society for Human Resource Management (access to which requires membership), the city had a standard policy on the books:

"The city had no official policy directed to text-messaging by use of the pagers. However, the city did have a general Computer Usage, Internet and E-mail Policy' applicable to all employees, which stated that [t]he use of city-owned computers and all associated equipment, software, programs, networks, Internet, e-mail and other systems operating on these computers is limited to City of Ontario related business. The use of these tools for personal benefit is a significant violation of city policy.'

"The policy further provided that access to the Internet and the e-mail system was not confidential, and information produced either in hard copy or in electronic form would be considered city property. The policy warned that these systems should not be used for personal or confidential communications.'"

Moreover, according to an article on The Washington Post, the city's policy also states that it "reserves the right to monitor and log all network activity including e-mail and Internet use, with or without notice." While common sense dictates that text messaging would be included under the policy, there was a mitigating circumstance. The Washington Post article noted that based on Quon's testimony, "the department sent a different message when it handed out pagers to SWAT team members. The department said that the devices were limited to 25,000 characters each month, but that officers also using them for personal purposes could pay for any overage charges." The SHRM article affirmed that the pager users were told that "as long as they paid the overage charges themselves, the text messages would not be audited."


Quon and other officers did regularly exceed the 25,000-character limit, and did pay the overage charges. But then the police chief ordered an audit of the pagers to determine whether he needed to raise the limit for the effective conduct of official business. As it turned out, according to The Washington Post, which cited court documents, "a review of one month's use showed that 57 of Quon's 450 messages were business related."


Clearly, it was exceedingly stupid on the part of the police department to OK personal use of the pagers, because it needlessly confused the personal use policy. It was also stupid to make an informal agreement that the pagers wouldn't be audited as long as the users paid the overage costs, since the department would obviously need to be able to audit them over time to determine whether the 25,000-character limit was sufficient to carry out official business.


But that stupidity can't sensibly be used as an excuse to support Quon's contention that the department violated his constitutional rights because he had a "reasonable expectation of privacy." Beyond the fact that the city's official policy explicitly states that it "reserves the right to monitor and log all network activity with or without notice," an informal understanding that an audit wouldn't be conducted can't reasonably be construed as a guarantee that the text messages would never be accessed by department personnel. A review of text messages sent by police officers, just as an analysis of the audio and video recordings they make, would be a natural component in the investigation of a crime. So to maintain that the users had an expectation of privacy is absurd.


While this case isn't starkly black-and-white, it's criminal that justice couldn't be served without the costly involvement of the U.S. Supreme Court. On the same day it agreed to hear this case, the Supreme Court refused to hear a case involving accountability for torture at Guantanamo, along with a key anti-gun case.


What an inexcusable waste.

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