Public employers may have to revise their cell phone, e-mail and text messaging policies in light of a recent 9th Circuit Court of Appeals decision.
Recent case: Jerilyn Quon worked as a police officer for the city of Ontario and was issued a pager she used to send text messages.
The contract for paging services was between the carrier and the city—not Quon. The city had a strong electronic communications policy that said no communications were private. Quon acknowledged she was aware of the policy.
The pager contract allowed a certain number of character transmissions per month. The police department regularly told employees who went over the limit to pay the difference. Quon regularly exceeded the limit and paid the fees.
Then the administrator in charge of collecting the overage fees decided the city should determine whether it needed to change the contract to allow for more text messaging. The administrator asked the pager carrier to pull all the messages sent through several accounts. That’s when it became readily apparent that some of Quon’s messages were private and sexually explicit.
Quon sued, alleging violations of her right to privacy under the U.S. and California constitutions.
The 9th Circuit agreed. It based its decision on the informal policy that allowed employees to pay for overages without sorting out which were personal and which were official texts. Essentially, the informal policy created a reasonable expectation of privacy, despite what the written, official policy said. (Quon, et al., v. Arch Wireless, et al., No. 07-55282, 9th Cir., 2008)
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