'Sexting' on the Job? Supreme Court Debates Workers' Online Privacy Rights

The online privacy debate is heating up -- and it may affect your right to send personal messages on the job.

The Supreme Court heard arguments in a case on Monday involving Jeff Quon, a police sergeant on the SWAT team of the Ontario, Calif., police department, who used his work pager to send racy text messages -- a practice also known as "sexting." The messages were retrieved and read by his bosses.

Video: Seniors talk about sexting.
Elderly couples are sexting

Justices differed on whether Quon had a "reasonable expectation of privacy" and whether the Fourth Amendment, which shields citizens against violations by the government, also protects a government employee.

Tricky Case

"I just don't know how to tell you what is reasonable," Chief Justice John Roberts said during the proceeding. "I suspect it might change with how old people are and how comfortable they are with the technology."

The case is complicated by apparent confusion about the police department's rules. The official policy told employees not to expect any privacy on their work devices, but according to Quon, a supervisor had told staff that he would not audit their personal messages as long as they paid for overages.

At one point, Justice Stephen Breyer indicated he might side with employees, saying a policy prohibiting personal texts outright would be too severe.

"You want to let them have a few," he said. "You need pizza when you are on duty."

Employers Pay

But then he added that no privacy should be expected and that employers should have the right to audit messages sent through work accounts.

"I don't see anything, quite honestly, unreasonable about that, when you are the employer (…) where you are paying for this in the first place," he said.

This case has been making its way through the courts since 2008, when Quon won a lawsuit against the Ontario police department for breach of privacy. His boss had obtained a transcript of messages without Quon's permission directly from the wireless provider, and found sexually explicit messages to his now ex-wife and his girlfriend.

'Sexting' on an Employer's Pager

At times some of the justices had to concede they did not understand messaging technology.

Chief Justice Roberts said at one point that text messages are delivered directly from one pager to another, but he was corrected by Quon's attorney, who pointed out that messages go through a communications company.

"I wouldn't think that," said Justice Roberts. "I thought, you know, you push a button; it goes right to the other thing."

"Well," said Quon's attorney, Dieter Dammeier.

"You mean it doesn't go right to the other thing?" said Roberts.

Although the Quon case is largely focused on privacy rights of government employees, the decision could have implications for private-sector employees too.

Privacy conflicts between employers and their staff are nothing new. Before the advent ofBlackberries, cell phones and office computers, workers and their bosses sparred over drugs and porn found in lockers and desk drawers. But the near-ubiquity of electronic communication devices, along with the growing popularity of "sexting" and other online activities that could tarnish an employer's reputation, have again dragged the issue into the news.

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