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In a closely watched case and in a nearly unanimous decision, the U.S. Supreme Court has held that the City of Ontario Police Department did not violate the Fourth Amendment privacy rights of its employee, police sergeant Jeff Quon, when it audited text messages he had sent and received on a department-issued paging device. City of Ontario, California, et al. v. Quon, et al., 560 U.S. ____ (2010). The Court's decision was narrowly tailored and applies only in the government employment context, in which employees may have constitutionally based privacy rights. The Court specifically declined to issue a “broad holding concerning employees' privacy expectations vis-'-vis employer-provided technological equipment.” Nonetheless, employers and employees in both public and private employment settings may try to apply some of the Court's commentary to other contexts.
The Case
In Quon, the police department had a written policy notifying employees they should have no privacy expectation in their e-mails sent on employer devices, and told employees both in writing and orally that this policy applied to text messaging on employer devices as well. When employees' texting went over monthly usage limits, the department had an informal practice of not reviewing messages to determine if they were work-related so long as the employee paid for the overage charges. Because two employees' usage often was above the monthly limit, the department conducted an audit of a two-month period in 2002 to determine if it needed to expand its usage limits or if the overages related to non-work use. During this audit, it discovered that Quon's usage was overwhelmingly for personal reasons and included sexually explicit messages. Quon was disciplined. He sued, claiming that his constitutional right to privacy under the Fourth Amendment was violated by the “search” of his text messages.
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