Justices question public employees' expectations of privacy

During arguments on Monday about whether personal text messages sent by public employees on government-supplied devices are private, a top Justice Department official cautioned Supreme Court justices not to "freeze into place" privacy requirements on electronic communications.

Neal Katyal, principal deputy solicitor general at Justice, said a blanket rule giving government employees the right to privacy on their work phones would be dangerous, suggesting some employers could become wary about giving out these devices or allowing even limited personal use on them in fear that workers would abuse the privilege.

Katyal made his arguments during the Supreme Court case of City of Ontario v. Quon, in which a law enforcement officer, Sgt. Jeffrey Quon who worked on a SWAT team, claimed his privacy was violated when the city police department got transcripts of racy texts he sent out (and paid for) on his work pager. Ontario's written policy states, "city-owned computers and associated equipment" should not be used for personal benefit and "users should have no expectation of privacy or confidentiality when using these resources."

The case is a landmark for government employees. It represents the first time the Court considered Fourth Amendment rights, which forbid unreasonable government searches, in the context of electronic communications by public employees.

Many of the justices seemingly favored Katyl's arguments. "The city owns the pager; it's a pager used for work," said Justice Steven Breyer. "They are giving a privilege to people if they want to use it off work."

But Justice Sonia Sotomayor said granting the city rights to review text messages might result in abuse. "[Assuming] one of the [police] chiefs, out of salacious interest, decides, 'I'm going to go in and get those texts, those messages, because I just have a prurient interest,'" she said. "Does that officer have any expectation of privacy that his boss won't just listen in out of prurient interest?"

Chief Justice John Roberts raised the issue of the difficulty in defining what is reasonable. "I just don't know how you tell what is reasonable," he said. "I suspect it might change with how old people are and how comfortable they are with the technology."

There are few Supreme Court decisions concerning the Fourth Amendment rights of government employees, said Erwin Chemerinsky, dean of the Irvine School of Law at the University of California.

Complicating this case is the fact that "technology has advanced faster than the law and everyone is confused about what the rules are," said Greg Nojeim, senior counsel at the civil liberties group Center for Democracy and Technology.

Last month, the center, together with privacy advocate groups Electronic Frontier Foundation and the American Civil Liberties Union, filed a friend of the court brief asking the justices to focus on the narrow facts of the case: supervisory searches of government employees.

Jared Kaprove, a fellow at the Electronic Privacy Information Center, said he was concerned after Monday's oral arguments that the Supreme Court would make its ruling based on what constituted a reasonable expectation of privacy for federal employees rather than the narrower question of whether the search had been reasonable. "This will make it harder in the future for employees to argue that [their] privacy might be violated," he said.

The justices shot down suggestions by Quon's lawyer, Dieter Dammeier, that the police department could have obtained his texts messages in a less intrusive way. "This is a SWAT team," said Justice John Stevens. "Supposing it was the officer answering 911 calls or things like that. Isn't there sort of a background expectation that sooner or later, someone might have to look at the communications for this particular kind of law enforcement officer?"

The justices' ruling is expected later this year.