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

Decision could give your boss more power to read your messages.

December 15, 2009, 4:05 PM

Apr. 20, 2010 — -- 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.

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.

Fired for Football?

Last year, a for example, a financial advisor in Texas was fired for sending e-mails about a seemingly innocuous hobby. Cameron Pettigrew, who worked as a client relations manager at Fidelity Investments in Texas, lost his job after supervisors found out he was sending messages about a fantasy football league that he ran.

More than a quarter of companies have fired employees for misusing e-mail and one-third have fired employees for misusing the Internet, according to a survey by the American Management Association. The same survey found that 43 percent of employers read workers' e-mail messages and 66 percent check Web site connections.

"The law gives most employers a great deal of freedom to monitor communications sent using work equipment in order to make sure that work they are paying for is being done," says Jonathan Ezor, a professor of law and technology at Touro Law Center in Central Islip, N.Y. "Workers can get in trouble for forgetting that."

Employers Have Rights

Employers cite a wide range of reasons why they should be allowed to snoop. They want to know if a worker is wasting the company's time and money updating his Facebook status instead of updating spreadsheets. They fear that co-workers could sue if they feel that company equipment is being used for sexual harassment. And they definitely want to know if an employee is stealing client information or leaking confidential data.

Company lawyers often argue that employers have undisputable rights because they own the equipment, and because they usually have policies that make it clear that messages will be monitored. But workers' advocates argue it's inevitable that employees will have to use work equipment to take care of personal matters, and that their bosses shouldn't be allowed free rein to snoop.

"In the world we live in, I don't think it's realistic to say you can't send a personal e-mail or a quick text while you're at work," says Paula Brantner, executive director of Workplace Fairness, a Texas-based advocacy group that defends workers rights. She points out that technology has increased the burden on workers, who are now expected to check work e-mail and take work calls from home. While she says she understands that employers must sometimes monitor messages to make sure no rules are being broken, limits must be set.

"The widespread viewing of messages – I can see why it's troubling to employees."

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