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Supreme Court Takes Texting Privacy Case 184

Posted by Soulskill
from the hi-2-u-juj-scalia dept.
TaggartAleslayer writes with this excerpt from the NYTimes: "The Supreme Court agreed on Monday to decide whether a police department violated the constitutional privacy rights of an employee when it inspected personal text messages sent and received on a government pager. The case opens 'a new frontier in Fourth Amendment jurisprudence,' according to a three-judge panel of an appeals court that ruled in favor of the employee, a police sergeant on the Ontario, Calif., SWAT team. ... Members of the department's SWAT team were given pagers and told they were responsible for charges in excess of 25,000 characters a month. Under an informal policy adopted by a police lieutenant, those who paid the excess charges themselves would not have their messages inspected. The lieutenant eventually changed his mind and ordered transcripts of messages sent and received by Sgt. Jeff Quon. In one month in 2002, only 57 of more than 456 of those messages were related to official business. According to the trial judge, many of the messages 'were, to say the least, sexually explicit in nature.'"
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Supreme Court Takes Texting Privacy Case

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  • Paid (Score:5, Insightful)

    by Renraku (518261) on Monday December 14, 2009 @06:56PM (#30436814) Homepage

    A work phone, paid for by the workplace, should be allowed to be inspected by the workplace. Just like email. Just like web traffic. Any abuse of this system, however, should be punished harshly and swiftly. If you want to sext each other, get your own damn phones. I'm sure evidence logs don't need a whole lot of, "Lol hang on let me beat this black guy for being black" mixed with "Done beating him here's a picture of my dick" when at trials.

    • Except that they said they wouldn't inspect the pagers if he paid the excess bills. And he paid the excess bills.

      So while I support them having the right, they went back on their word.

      • If there was no formal written policy declaring no lookie - it's claimed a person had a personal informal policy and this is not the department's policy - then SOL, no matter what the Lt. may have said.

        I would further say that the fact the Lt went looking suggests there was something the employee was doing that wasnt kosher and there is more to this story. I am betting the person who got looked at was not doing their job.

        The fact the SCOTUS took this up is a concern for businesses and sys admins. I would ha

    • by GooberToo (74388)

      I agree, but the details are a little different here. The boss told employees their texts would be kept private. The employees now had legal reason to expect privacy so long as they maintained their legal obligation, which was to pay the overages. The boss then violated their privacy, contrary to the previous assertions.

      This is actually pretty cut and dry. The employees were assured of privacy. The employer lied. The employee was fired as a result of the employer's lie. Had the employer not lied, its doubtf

    • A work phone, paid for by the workplace, should be allowed to be inspected by the workplace.

      ...and it could be, as long as it was done routinely, consistently, and (if impractical to inspect all employees’ devices) randomly, without bias.

      Putting all the employees’ names in a database and pulling a random name every week to have the employee’s texting history reviewed would be an acceptable implementation of this policy. “Randomly” deciding to inspect an employee’s texting history is not acceptable... and they didn’t even have precedent for doing that.

  • by Monkeedude1212 (1560403) on Monday December 14, 2009 @06:58PM (#30436856) Journal

    From the Summary:

    The lieutenant eventually changed his mind

    And that's all thats required to know they were in the wrong. If they were going to change their mind, they need to inform their employees that the change is occuring, and that his privacy will then be at stake. They should only be able to check pager transcriptions after that day.

    You can't say one thing and then do another, even if it's to stop sexually implicit messages. Deceipt cannot be tolerated at any level of government.

    • by BitterOak (537666)

      The lieutenant eventually changed his mind

      And that's all thats required to know they were in the wrong. If they were going to change their mind, they need to inform their employees that the change is occuring, and that his privacy will then be at stake. They should only be able to check pager transcriptions after that day.

      True, but only if said lieutenant had the authority to override department policy on the matter in the first place.

      • # - True, but only if said lieutenant had the authority to override department policy on the matter in the first place.

        He had authority over the sergeant, it's no different to a mid-level boss telling his underlings they can knock of half an hour earlier today because (say) the network is down, and then the upper level boss sacking the lot of them for goofing off.
      • by ebuck (585470)

        So each time my boss tells me something, I'm supposed to go up the chain of command until I am sure my boss is not in the wrong? That might work for a small set of rules (United Code of Military Conduct) but it can't work for general policy. General company policy is based on your boss having the authority to decide what you do and don't do (within reason). If my boss says I can use a company resource for personal use, and that they don't monitor such personal use, what about such a directive is so unrea

      • By not ensuring that a policy is enforced all the way down the line, the authority to change it is implicitly passed down the line as well.

        In other words, if you have the authority to make a policy, and then fail to ensure that the middle management underneath you enforces that policy, you are implicitly giving them the authority to change it.

        If it comes to your knowledge that middle management is not enforcing the policy, you must immediately issue a memo ordering them to begin enforcing it – which m

    • by Eevee (535658)
      Who is "they"? The Police department? They didn't change their mind, and had always explicitly stated that messages could be monitored. They The lieutenant? He didn't have the authority to make changes in policy.
      • He's the one enforcing the policy though. Had it been NOT the lieutenant doing the inspection I think I'd be a little more lenient in my standing, but its basically 1 Man deciding to change his mind. It's not 1 man saying one thing, policy saying another, and another guy doing the inspection.

        No, this is a man going back on his word. Whether it's within his rights to do change policy or not it doesn't matter, this guy was a jerk, and the courts are upholding the spirit of the law.

    • by TubeSteak (669689)

      The lieutenant eventually changed his mind

      And that's all thats required to know they were in the wrong

      My WTF moment from the decision: the 9th Circuit Court declared that since FOIA requests aren't common,
      the fact that the texts were public records didn't remove the users' expectation of privacy.

    • by chazzf (188092)
      The summary, however, oversimplifies things. In the opinion, the Court notes that the sergeant signed an acceptable use policy in 2000, and was informed at a general meeting in 2002 that pagers (and their messages) were considered email as far as the policy was concerned. The city had a policy/practice (not entirely clear how official) that employees who went over the 25,000 character limit would pay the overage. The lieutenant who acted as the bill collector apparently told members of the force that if the
    • This seems to me (IANAL) grounds for 'estoppel': the cop relied on the statements of his superior who then then reneged on them without notice.

      Rgds

      Damon

  • by Fluffeh (1273756) on Monday December 14, 2009 @07:02PM (#30436900)
    Browsers with "Stealth" (porn) browsing features, schoolkids sending naked pictures of themselves via cellphone, laptops loaded with porn, and you really expect company pagers not to be used to shmooze with others?
    • Re: (Score:3, Insightful)

      by Hurricane78 (562437)

      Well, it’s all about forbidding the “lower class” to reproduce.

      When chatting about sex is forbidden, but chatting about who you just shot is OK, you know that something is fucked up beyond all recognition.

    • by Ogive17 (691899)
      I have written emails to friends, family, and my girlfriend from my work laptop on almost a daily basis. I would never send something that would later embarass me if it became public, but I know there is no expectation of privacy while on this laptop... regardless of what my boss told me.

      It's common sense. When did this country lose it?
  • How is this any different than employers reading your e-mail? There's already statements from the Supreme Court that "While police, and even administrative enforcement personnel, conduct searches for the primary purpose of obtaining evidence for use in criminal or other enforcement proceedings, employers most frequently need to enter the offices and desks of their employees for legitimate work-related reasons wholly unrelated to illegal conduct."

    It sounds like in this case the employer had a policy regardi

    • by davmoo (63521)

      What makes this one "different" is that the organization who owns the equipment is a government entity, not a private business.

      If this were a case involving John's Private Company Inc, there would be no case here...everyone up to and including SCOTUS has ruled "he who owns the equipment or account makes the rules and can look at their use and content freely".

      But to my knowledge they've never before ruled on how/if that applies to divisions of government.

    • How is this any different than employers reading your e-mail?

      Because employers are reading email on work computer paid for entirely by work. In this case, they were reading messages on a pager where the user was paying for any and all costs over the 25k characters a month. In this case, since the business is not footing the bill themselves, they do should not have a right to monitor how that device is entirely being used (aside from the fact that it may have exceeded the stated limit of 25k characters that they were going to pay to cover).

      As for your "

      Since Text Messages and E-Mails are handled by third parties, wouldn't this also apply to the recent ruling that you don't have a right to privacy?

      ", I would arg

      • I would also note that this is much more like a phone than an email system, since the underlying technology is very much like a cell phone than to a PC sending/receiving email.
    • > Since Text Messages and E-Mails are handled by third parties, wouldn't this
      > also apply to the recent ruling that you don't have a right to privacy?

      Citation.

    • by TubeSteak (669689)

      How is this any different than employers reading your e-mail?

      Read the decision.
      The contents of communications made using an RCS can be disclosed to the owner of the equipment (the city).
      The contents of communications made using an ECS can only be disclosed with the consent of the sender or intended recipient.

      The 9th Circuit Court decided that a two-way pager is an Electronic (ECS), and not Remote(RCS), Computing Service.
      This makes all the difference in the world under California State law and the Constitution.

      Ontop of that, the lieutenant's informal (yet consistently

  • by Gordonjcp (186804) on Monday December 14, 2009 @07:13PM (#30437042) Homepage

    They use pagers? And, more to the point, they *pay* to use pagers? They should have been using SMS on their mobile phones. Personal phones, rather than employer-supplied ones. That way it would be free from employer snooping, and free to use.

    • by rolfwind (528248)

      Idk if pagers are more reliable or what not, but this single web page we are on here is way more than 25k characters. Just a thought...

    • Re: (Score:3, Insightful)

      by westlake (615356)

      Personal phones, rather than employer-supplied ones. That way it would be free from employer snooping, and free to use

      and the ever-paranoid geek won't see any problems at all in allowing undocumented use of private phones and messaging services by police officers on duty?

    • Re:Wait a minute... (Score:4, Informative)

      by ThreeGigs (239452) on Monday December 14, 2009 @08:49PM (#30438302)

      The year is 2002, not 2009. SMS was not very prevalent at the time, and inter-provider SMS was still occasionally glitchy. That was the time of dedicated alphanumeric pagers waning in popularity while the 'cool kids who wanted to be like the drug dealers' were discovering SMS on their phones.

  • by syousef (465911) on Monday December 14, 2009 @07:14PM (#30437050) Journal

    Gimme a break. I didn't realise the police were clergy! What law was this guy breaking by sending sexually explicit messages? As for the issue of using police equipment for personal messages, if this was permitted at the time, again what's the problem? If he was breaking a law why isn't this what we're hearing about rather than the fact that he liked to talk dirty?

    • I don't this is a case of breaking laws. The issue is larger than that especially when the Supreme Court takes a case. At issue is what privacy rights employees can expect when they use communications systems provided by their employer. The Supreme may narrowly rule only for government employees though. Most employers have policies for older technologies like telephones and mail but not have defined their policies on the new communication systems like texting.

    • by TubeSteak (669689)

      As for the issue of using police equipment for personal messages, if this was permitted at the time, again what's the problem?

      I didn't see anywhere in the decision that said the officers' behavior was permitted.
      As a matter of fact, both sides agreed that the AUP prohibited such usage.
      The Court decided that the officers had a right to privacy and the searches were unreasonable, that's it.

      If the Lieutenant had stuck to the policies as they were written, there would have been no presumed right to privacy and this would never have ended up in court.

  • by BobMcD (601576) on Monday December 14, 2009 @07:29PM (#30437220)

    According to the trial judge, many of the messages 'were, to say the least, sexually explicit in nature.'

    ...and, what? Is there a policy against it? Was the other party a co-worker? Why is this remotely relevant?

    The policy states:

    The use of inappropriate, derogatory, obscene, suggestive, defamatory, or harassing language in the e-mail system will not be tolerated.

    So if I were to exchange sexually explicit messages with my wife, for example, how does the policy apply? It would then be appropriate, favorable, natural, explicit, complimentary, and welcome. What happens now?

    “[u]sers should have no expectation of privacy or confidentiality when using these resources.”

    And likewise, people peeking in my bedroom window should expect to see my hairy butt from time to time. Don't want to see, don't look. Look, you get what you asked for...

    The closest thing I can find is this:

    Chief Scharf referred the matter to internal affairs “to determine if someone was wasting . . . City time not doing work when they should be.”

    Hey, Chief, they were. Investigation over. Chances are, you were, too, unless you somehow work your entire shift without periods of non-work time. That includes your bathroom time, sir. The salient question should be, were any dollars actually wasted? Was there any SWAT not getting done because of the excessive pager use?

    • Since he was using employer provided equipment. Yes, there was (and is) a policy of not using employer provided equipment to send sexually explicit messages. To anyone. Even your wife.

      • by BobMcD (601576)

        Not according to the court documents. Not as I understand the language, as I outlined in the quoted portions of my post. The policy stanza is clearly targeted at harassment issues rather than any puritanical interests. I welcome your disagreement, but some facts in support of it would be nice.

  • by Eil (82413) on Monday December 14, 2009 @07:37PM (#30437302) Homepage Journal

    I heard this on NPR this morning and the fact that they were using the phrase "grey area" astounded me.

    Look, it's simple: if your employer owns a device, and allows you to use it, you are not to ever use it for personal reasons, nor should you ever expect even the slightest amount of privacy for communications using the device. Even (and probably especially) if they give you permission for personal use. That goes for cell phones, pagers, computers, slide rules, everything. That means you do not log into personal Facebook, Google, or Hotmail at work. You do not use the company phone to call home. If you do any of these, you've 1) probably violated the terms of your employment and 2) have given the company/government permission to peer into all personal communications made with your employer's equipment.

    You have explicit rights (in most cases) to privacy and use of the property that you actually own. That's it, the line is drawn there. I can't believe there is any controversy over this.

    • by Reason58 (775044)

      Look, it's simple: if your employer owns a device, and allows you to use it, you are not to ever use it for personal reasons, nor should you ever expect even the slightest amount of privacy for communications using the device. [...] That goes for cell phones, pagers, computers, slide rules, everything. That means you do not log into personal Facebook, Google, or Hotmail at work.

      But I can't make it through the day without checking out the latest slashdot story on my company-issued slide rule!

    • Re: (Score:3, Insightful)

      by rahvin112 (446269)

      Unless of course your employer told you that you could use it for personal use if you covered those charges. Then when that employer turns around and changes their mind without telling the employees and then takes action against said employee's for doing exactly what they were told they could do.

      It's called lieing, not changing your mind. The supervisor lied to the employees, either that or he got angry at the employee in question and decided to change the policy for this one employee so he could find a rea

    • Re: (Score:3, Interesting)

      by John Whitley (6067)

      You have explicit rights (in most cases) to privacy and use of the property that you actually own. That's it, the line is drawn there. I can't believe there is any controversy over this.

      Of course there's controversy! In case you haven't noticed, a vast majority of our "personal" data has wandered out onto networks and servers that none of us control. This has been a gradual process going on for years, but the very attributes of modern networked computer systems make the real-world impact of these changes much greater now. This has radically changed the landscape under which the 4th amendment (and a lot of other law) was originally conceived. I'd say that review of the applicability of

      • by DaveV1.0 (203135)

        I was just going to mod you "off topic" but decided to explain why instead.

        Your post is a red herring. This has nothing to do with "a vast majority of our "personal" data has wandered out onto networks and servers that none of us control." This is about someone using his employer's equipment for personal use and the employer examining that personal use. That is the total extent of what was happening.

        There is no controversy here. Someone used his employers equipment for personal use. Employer inspected the e

    • by jschottm (317343)

      the fact that they were using the phrase "grey area" astounded me.

      The reason it's a grey area is that technology has advanced far faster than the laws that regulate it.

      Look, it's simple: if your employer owns a device, and allows you to use it, you are not to ever use it for personal reasons, nor should you ever expect even the slightest amount of privacy for communications using the device. Even (and probably especially) if they give you permission for personal use. That goes for cell phones, pagers, compu

    • by ffflala (793437)

      mod parent up

    • by jittles (1613415)
      Really? Never call home or be called from home on your work phone? Clearly you don't have kids, or work in a facility that has no cell phone reception.
  • "Under an informal policy adopted by a police lieutenant, those who paid the excess charges themselves would not have their messages inspected."

    This case will probably set no clear precedent.

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