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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.

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In urging the high court to take up the case, lawyers for Ontario and its police department said the Ninth Circuit’s decision was a “sweeping, categorical extension of Fourth Amendment rights.”

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Expanding privacy rights?

The Ninth Circuit’s ruling “hampers public agencies’ ability to monitor employees’ workplace electronic communications,” writes Los Angles lawyer Kent Richland in his brief on behalf of Ontario.

“The question this court needs to address is what happens when public employees seize on informal accommodations [such as in the Quon case] to try to expand expectations of privacy beyond those that society is prepared to recognize as reasonable,” Mr. Richland writes.

He adds: “In effect, the Ninth Circuit opinion affords Fourth Amendment protection to irresponsible plaintiffs’ unreasonable expectations of privacy and thus encourages public employers to curtail any accommodations in electronic communications.”

Quon’s lawyer, however, says the Ninth Circuit decision does not expand privacy protections. “In practical terms the decision is insignificant since it is based entirely on Ontario’s own unique practice, and one that most employers would not embrace,” writes Upland, Calif., lawyer Michael McGill in Quon’s brief.

Mr. McGill said the Ninth Circuit decision turns on the actions of the Ontario police department that created employee expectations of privacy. “Quite candidly, the appellate decision acknowledged that Ontario was its own worst enemy,” he writes.

In a friend of the court brief, the League of California Cities warned that the Ninth Circuit decision, if allowed to stand, was likely to have a significant adverse affect on local government efforts to enforce written policies restricting personal use of government-issued equipment.

“At most, the informal billing practice here created a subjective expectation of privacy for Sergeant Quon,” the brief says. “But the operational realities of the police department made any subjective expectation of privacy in those messages unreasonable.”

The case, City of Ontario v. Quon, is expected to be heard next spring, with a decision by late June.

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