Supreme Court hears text-messaging privacy case

The U.S. Supreme Court will likely rule that government employees have no right to privacy when they send text messages using their business phones.
The Supreme Court will decide whether government employees should have any expectation of privacy when they send text messages using work-issued phones.

In a case with implications for public schools and colleges, the U.S. Supreme Court appears likely to rule against public employees who claimed a local government violated their right to privacy by reading racy text messages they sent through their employers’ account.

Several justices said April 19 that the employer, the Ontario, Calif., police department, acted reasonably in monitoring the text messages in view of its written policy warning employees they have no guarantee of privacy in the use of office computer and electronics equipment.

Justice Stephen Breyer said he didn’t see “anything, quite honestly, unreasonable about that.”

While the case involves government workers, the decision could have broader privacy implications as courts continue to sort out privacy issues in the digital age. Many employers tell workers there is no guarantee of privacy in any communications sent over their company- or government-provided computers, cell phones, or pagers.

The case arose when the Ontario police department decided to audit text-message usage to see whether its SWAT team officers were using their accounts too often for personal reasons. Three police officers and another employee complained that the department improperly snooped on their electronic exchanges, including many that were said to be sexually explicit.

An Ontario police official earlier had informally told officers that no one would look further if officers personally paid for charges above a monthly allowance.

The 9th U.S. Circuit Court of Appeals in San Francisco said the informal policy was enough to give the officers a “reasonable expectation of privacy” in their text messages and establish that their constitutional rights had been violated. The appeals court also faulted the text-messaging service for turning over transcripts of the messages without the officers’ consent. The court declined to hear the appeal of USA Mobility Wireless Inc., which bought the text-messaging service involved in the case.

The Obama administration is backing the city, arguing that the written policy, not any informal warning, is what matters. “The computer help desk cannot supplant the chief’s desk. That simple, clear rule should have decided this case,” Justice Department lawyer Neal Katyal said.

More broadly, Katyal said, the appeals court ruling calls into question policies put in place by governments across the country. “Thousands of employers rely on these policies, and millions of employees,” he said.

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