< Don't Read That


Friday, December 18, 2009

BOB GARFIELD: On Monday, the Supreme Court announced it will hear a case about whether an Ontario, California police department violated the constitutional privacy rights of one of its cops when it reviewed personal text messages he had sent on a government pager. The case is the first the Supreme Court has taken that has to do with the Fourth Amendment privacy protection of an employee’s text messages. It comes at a time when technology has blurred lines between work and private life and when the same technology gives employers access to every keystroke on company hardware. David Savage, who’s been following the case for The Los Angeles Times, joins me now. David, welcome to OTM.


BOB GARFIELD: So the case involved a police officer who'd been using his department-issued pager to send kind of salacious text messages, correct?

DAVID SAVAGE: Yes, to a girlfriend who also worked for the police department. The city had a policy saying that our computers and cell phones are for business use and you should have no right to privacy. However, after these pagers were distributed, one of the lieutenants who was in charge of this Sergeant Quon and several others said, look, you guys can use these, but if you go over the 25,000 characters a month in the text that’s in the contract, you have to pay for it. And so, their understanding was that they could use this for personal messages, as well as business messages, and that’s what Sergeant Quon did.

BOB GARFIELD: Let's talk about the appeals court decision that the Supreme Court is reviewing. They looked at the particulars and found that, yes, the police department overreached. Was that a decision without precedent in the federal courts?

DAVID SAVAGE: I don't know of another decision like this from a federal appeals court. I should say, Bob, that one of the most important concepts in the Fourth Amendment is what judges call a reasonable expectation of privacy. Way back in the '60s, the court [LAUGHING] had a case involving a fellow, who was a gambler, who was making phone calls at a pay phone in Los Angeles. And the Supreme Court in that case said that even though he wasn't in his own house, the government couldn't wiretap him because when he was standing in a glass phone booth he had a reasonable expectation that his calls were private. And that concept has continued all along. And so, when a court gets a case like this, the question is did this person have a reasonable expectation of privacy. And what was unusual in this case was that the Ninth Circuit looked at this case closely and said, yes, these employees had been led to believe that they could use these pagers and send text messages and that they were personal, and that, therefore, looking through the contents of the messages amounted to an unreasonable search.

BOB GARFIELD: The fact that this is a government agency involved, I think, clouds the issue that’s of interest to most of our listeners, and that is the degree to which a private employer is permitted to snoop on its employees via the electronic gizmos, whether it’s pagers or cell phones or computers, that they issue. I think we are all of us very exposed. And what I want to know is no matter what the Supreme Court may rule here, whether it will provide any clarity for civilians of civilian employers.

DAVID SAVAGE: I think it will provide some clarity and some guidance, and I'll tell you why, because if you talk to lawyers, they all say, on the one hand, the Fourth Amendment decisions grow out of the government, but most judges around the country, their privacy rulings are guided very much by what the Supreme Court says about the constitutional law. So these cases can come up in a lot of different ways. You can work for a private company and still file some sort of invasion of privacy suit in a situation like this. And when judges then look to say, okay, what’s a reasonable expectation of privacy, they're very much guided by the Supreme Court’s decisions in the Fourth Amendment area. So technically this is a case about government employees but, practically speaking, down the road I think the decision will affect private companies, as well.

BOB GARFIELD: Obviously, employers have some interest in what’s going on in their networks and on their hardware. On the other hand, if I'm using an office computer to tell somebody about my cancer, for example, whether I want my employer to know that and whether they have any right to see it because, after all, they may find me an unacceptable health care risk. In fact, I'm not sure that I want my boss to know what I'm having for dinner tonight. Will this case clarify that conflict?

DAVID SAVAGE: I think it will, but I think it’s just a start. I think the Supreme Court’s rulings will set sort of a general picture of the Fourth Amendment law, and then I think there'll be a whole series of cases in the lower courts, the state courts, different iterations of privacy. And always the question will be, did the employee have a reason to believe that his messages, his texts, were private and personal?

BOB GARFIELD: Now, there’s another legal wrinkle in this case, because while the Supreme Court agreed to hear the privacy question, it let stand the appeals court ruling concerning the Electronic Communications Privacy Act of 1986 that prohibits a wireless service provider from revealing the substance of electronic messages without the consent of either the sender or the recipient.

DAVID SAVAGE: Yes, this is a victory for employees already, a privacy victory, because by letting that decision stand, it basically says that the law is that if you’re a wireless service provider and you've got stored messages from somebody, you can't turn them over to the employer without the consent of the person who sent them or the person who received them. I think the possibility is the Supreme Court thought that that’s what the law says and so that’s what it means, so they chose not to review or reconsider that decision. But leaving it stand is actually a fairly big deal.

BOB GARFIELD: All right, David. Thank you very much.

DAVID SAVAGE: Thank you, Bob.

BOB GARFIELD: David Savage covers the Supreme Court for the Washington Bureau of The Los Angeles Times.