WASHINGTON (CN) – The Supreme Court on Monday tackled privacy rights in the digital age, as lawyers debated whether a California police department crossed the line by reading text messages from a SWAT sergeant’s work-issued pager. “I just don’t know how to tell you what is reasonable,” Chief Justice John Roberts said. “I suspect it might change with how old people are and how comfortable they are with technology.”
The police department in Ontario, Calif., read the pager messages of Sgt. Jeff Quon, including messages to and from his wife and his mistress. Many were sexually explicit.
The lieutenant in charge initially told officers that their pagers could be monitored the same as email, but later said he wouldn’t audit the pagers so long as officers paid for any personal messages beyond the 25,000-character monthly allotment.
After a few months, however, the lieutenant said he was tired of being a “bill collector” and decided to investigate Quon’s repeat overages. Arch Wireless handed over the transcripts.
Quon, his wife and two other message recipients sued the department and Arch Wireless for invasion of privacy and violations of the Stored Communications Act.
Arguing for the city, Kent Richland said Ontario’s policy specifically states that city-owned computers and “related equipment” are subject to monitoring. He said pagers fall into this category.
Quon’s attorney, Dieter Dammeier, insisted that the scope of the search was unreasonable. The written policy didn’t specifically mention pagers, he argued, and Quon’s supervisor had led him to believe the messages wouldn’t be monitored.
When pressed by Justices Stephen Breyer and Sonia Sotomayor to come up with a less intrusive method for determining how much Quon owed, Dammeier said the city could have asked for Quon’s permission to read the messages, or could have let Quon filter the messages himself.
“You are relying on the very person you are auditing to do the audit for you,” Sotomayor said. “That’s just not logical.”
The chief justice appeared sympathetic to the SWAT officer. “I think if I pay for it, it’s mine and not the employer’s,” Roberts said, referring to the overages Quon paid for.
But Breyer stressed that “the city owns the pager,” and that Quon’s use of it was a privilege. “I don’t see anything, quite honestly, unreasonable” about checking the records, he said.
The city wants the justices to reverse the 9th Circuit’s June 2008 ruling that Quon had a reasonable expectation of privacy based on the lieutenant’s oral policy that the pagers wouldn’t be audited. Seven judges dissented from the full circuit’s refusal to rehear the case, including Judge Sandra Ikuta, who said the panel’s decision “improperly hobbles government employers from managing their workforces.”
This is the first case at the Supreme Court level to test the privacy of text messaging. The high court’s ruling could have widespread repercussions on email, Facebook and other messages sent from work-issued devices.