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    Update on Case Concerning Privacy of Employee’s Text Messages

    In 2008, the Ninth Circuit Court of Appeals ruled in Quon v. Arch Wireless that an employer who contracted with an outside firm to transmit text messages could not read the messages unless the employee allowed the company to do so. Now, the U.S. Supreme Court has ruled (pdf) in the same case, but with the name City of Ontario, Calif. v. Quon, that “employers have the right to look over the shoulders of workers who use company computers and cellphones for personal communication,” so long as there is a “legitimate work-related purpose” to monitor them, reports the Washington Post.

    Justice Anthony M. Kennedy wrote the opinion for the unanimous court:

    The Court does not resolve the parties’ disagreement over Quon’s privacy expectation. Prudence counsels caution before the facts in this case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations of employees using employer-provided communication devices. Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. At present, it is uncertain how workplace norms, and the law’s treatment of them, will evolve.

    Because it is therefore preferable to dispose of this case on narrower grounds, the Court assumes, arguendo, that: (1) Quon had a reasonable privacy expectation; (2) petitioners’ review of the transcript constituted a Fourth Amendment search; and (3) the principles applicable to a government employer’s search of an employee’s physical office apply as well in the electronic sphere.

    He also noted that “the Court would have difficulty predicting how employees’ privacy expectations will be shaped by those changes or the degree to which society will be prepared to recognize those expectations as reasonable.” Also, “Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or nec­essary instruments for self-expression, even self­ identification. That might strengthen the case for an expectation of privacy. On the other hand, the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cell phones or similar devices for personal matters can purchase and pay for their own.”

    Justice Kennedy wrote, “Even if he could as­sume some level of privacy would inhere in his messages, it would not have been reasonable for Quon to conclude that his messages were in all circumstances immune from scrutiny.”

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