The Supreme Court heard arguments in City of Ontario, Calif. v. Quon on the issue of whether an employee has a reasonable expectation of privacy from employer snooping in their texts. In that case, the pager belonged to the city employer but Quon, the employee, may have paid for the texts, and Quon and other employees who were texting were off duty at the time. The Ninth Circuit had held that the city violated Quon’s privacy rights when it reviewed transcripts of the texts.
As reported by Law.com, it is not clear which direction the Supreme Court will go on this issue. What is an employee’s “reasonable expectation of privacy” for texts? Are texts the same as email? As a phone call? Does the employer’s policy that an employee has “no privacy rights in the use of city computers and related equipment” mean that anything created on an employer’s equipment can be reviewed by the employer? Does that seem right?
Deputy Solicitor General Neal Katyal cautioned the Court about generalizing Fourth Amendment rules in this area because the technologies are “rapidly in flux” and expectations of privacy have not been as clearly formed as in traditional Fourth Amendment areas, such as homeowners putting trash to their curbs.
Certainly this is an area that is not yet settled. Recently the 11th Circuit held (Rehberg v Paulk) that a party has no privacy rights to email because email is “information you have turned over to a third party.” As asked by the Citizen Media Law Project, When Courts No Longer Consider Email to be Private, What is Left?
The opinion of commentators and bloggers, like Kashmir Hill on True/Slant seems to be that the law has not caught up with the technology.
One of the main arguments that Quon’s lawyer kept making is that sending a text message is like sending a letter. When you send a letter, the government is not supposed to seize and review it at the Post Office.
Until this issue is decided by the Supreme Court, and either statutes or cases help to clarify the right to privacy in these new ways of communicating, think about whether you want your employer reading what you have sent by email or by text.
For more on issues of privacy, see Privacy Compliance and Litigation In California (Cal CEB 2008).
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