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Supreme Court to look at employees' privacy rights

An Ontario, Calif., police officer sued the city for violating his privacy rights when it went through personal messages sent from his department-issued pager. The Supreme Court is taking up the case.

By Staff writer / December 14, 2009

The US Supreme Court has agreed to take up a case examining to what extent employees have an expectation of privacy in personal communications conducted on employer-issued communications equipment.

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Workplace privacy is becoming an increasingly thorny issue with a broadening array of office technology used to aid efficiency and job performance but that can also provide a paper trail of intimate and potentially embarrassing details of a worker’s personal life.

That’s what happened to Police Sgt. Jeff Quon.

As a member of the Ontario, Calif., Police Department’s SWAT team he was issued a digital pager.

The city maintains a policy for computer, Internet, and e-mail use that barred personal use. It says employees should have no expectation of privacy or confidentiality.

When the city purchased pagers in April 2002, it announced that they, too, would be covered by the city’s e-mail policy. But this instruction was not expressed as a formal amendment to the written policy.

Instead, day-to-day practice evolved into an informal policy on the use of pagers. The contract with the city’s service provider allowed 25,000 characters of use each month. If an officer went over that limit, a department official would contact the officer and obtain payment for any overage.

This informal policy suggests that the city understood and accepted the fact that many department members were using their official pagers to send and receive personal messages.

Then in August 2002, the police chief, without notice, ordered an audit of pager use. The city contacted the pager service and requested transcripts of communications from pagers that had exceed the 25,000 character limit. Sergeant Quon’s was among them.

Explicit personal messages

The transcripts revealed not only that Quon was using the pager for personal messages but that many of these messages were sexually explicit. Some were sent to his wife Jeriyln. But others were sent to a dispatcher, April Florio, at the department with whom Quon was having an affair, according to court documents.

Quon, his wife, his alleged girlfriend, and another officer, Steve Trujillo, responded to the release of the transcripts by filing a lawsuit in federal court claiming violation of their privacy by city officials.

At trial, a federal jury returned a verdict for the city. On appeal, the Ninth US Circuit Court of Appeals reversed, ruling that Quon and the others all had a reasonable expectation of privacy in the personal messages sent on the city’s pager. The appeals court also ruled that the city engaged in an unreasonable search when officials requested transcripts of the pager communications from the service provider without first seeking permission from a sender or recipient of those messages.