High Court case could change online privacy rules
April 19, 2010 by Sam NarisiPosted in: In this week's e-newsletter, Regulations & Compliance
Pagers? Who uses pagers in the world of iPhones and Blackberries? Not many folks, but a legal dispute about the outdated devices could have an impact on the way businesses use other technologies.
A Supreme Court case is on the docket that may be a landmark event for users of cell phones, instant messaging, social networking sites, e-mail and Web searches. The result of this case may go a long way to deciding privacy rights for new media in the 21st century.
The case, City of Ontario vs. Quon, involves the Ontario, CA, police department giving pagers to its SWAT team officers. The officers were told that while the devices were intended for official business, they could use them for private purposes, as long as they paid for any overcharges on their accounts. The department would consider those added messages as private.
At a later point, the department suddenly shifted policy, and had the pager company deliver the records of pager use, including the messages sent. They found that one officer had exchanged hundreds of sexually explicit messages with several women. When he was reprimanded, he and three of the women he was in touch with (two outside the police force) sued for violation of privacy.
The case hinges on Fourth Amendment rights against unreasonable searches. An appeals court determined that the police officer and his (ahem) correspondents had their privacy rights violated. The city of Ontario appealed to the Supreme Court.
This case may be settled narrowly, but the issues may be significant since the whole area of electronic privacy is still not firmly decided. While the employee using an employer-supplied device may not have an expectation of privacy, what about the people he is in contact with who were not employees? What rights do employees have if any? To what extent are any online communications subject to government review, without warrant? This case could have repercussions far beyond police department internal affairs.
The great irony, as pointed out in this NPR article, is that the Supreme Court is barely past the era of quill pens and typewriters, yet is about to decide on the direction of 21st-century technology.
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Tags: cell phones, City of Ontario vs. Quon, pagers, privacy, Supreme Court
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April 21st, 2010 at 1:11 pm
Good info for the new era
April 21st, 2010 at 1:34 pm
Unless the change in policy, i.e. from “pay for the overage and it is private” to “pay for the overage but it still is NOT private”, was spelled out to the officer, then I cannot see where the city has a case, even though it supplied the pager. Similarly, since the messages involved at least one person who was NOT a city employee, then I cannot see where the city has a right to seize and review the messages to that person.
In general, though, I find the whole concept of sending a message in plain text that you may not want someone else to read, especially your employer, on a device _supplied_ by that someone else to indicate rather questionable decision making. If the officer is dumb enough to use an employer supplied device to send messages that he didn’t want to have the employer read, then the officer is not making what I would consider “good decisions.”
However, I also find it humorous to consider the Supremes deciding this based upon their apparent technowledge, so to speak.
April 23rd, 2010 at 10:15 am
From the article it appears that they changed the privacy policy (probably with some statement that the new policy was retroactive), then pulled pages from dates covered under the old privacy policy. Having been in the military and seen similar things done there, I would bet that they changed the policy just to see what this particular officer was up to. However, I believe that it is unethical to make ANY policy change with punitive consequences retroactive, as any such change is usually intended to screw someone over.
FYI: the most common similar thing I saw in the military was “random” drug tests being held every week for several weeks until a suspected pothead’s number finally came up and he pissed hot on the test, allowing the leadership to discharge him dishonorably “by the book.”
May 26th, 2010 at 9:09 am
It’s called common sense. The fact that he had gone over his limit on the pager that was a publicly funded device given to him by his employer, he easily put himself in the situation. Frequent use of the devise is obviously going to wave red flags for the boss to see, therefore; he had a reasonable suspicion to read what was going on. as an employer I believe he had every right to make sure the pager was being used in a professional manner, which was definitely not.
Defendant Quon is upset, because he got caught being dirty and unfaithful