High court to settle 'sexting' at work case

The future of employee privacy rights in the workplace has taken center stage this week as the  U.S. Supreme Court takes up a case involving an Ontario, Calif., police officer and sexting. The case also might be exposing several justices' technological naiveté.

The case in question stems from an Ontario, Calif., SWAT sergeant, Jeff Quon, who was caught sending 456 personal text messages — an average of 28 per shift — with his department-issued smart phone while on duty. The city’s wireless contract put a limit on messaging, and he and other officers were exceeding that limit, causing overage charges. So the city looked at the messages from the top two offenders — Quon was one — and found that only three were work-related.

Not only were most of Quon's text messages personal rather than about work, many were sexually explicit. To complicate matters, the two recipients of those messages — his wife and mistress — both worked for the Ontario police department.

So Quon’s employer found out about his sexting after an internal investigation into excessive texting in the department. Quon, in turn, sued the police department for violating his privacy.

As the Supreme Court justices heard oral arguments April 20, a couple of justices seemed to struggle to understand how text messages work, according to the "DC Dicta" blog of LawyersUSA.

Justice Anthony Kennedy wanted more information about how text messages can be sent and received. If one of the officers sent a message at the same time another one was composing a text message, Kennedy asked whether the phone would generate a message that states, "Your call is important to us, and we will get back to you shortly."

For his part, Justice Anthony Scalia wanted to know whether Quon could "print these spicy little conversations and send them to his buddies."

By the end of June, the court is expected to decide this case. Stay tuned to see whether they restrict their opinions to the details of the case or issue a more comprehensive — and perhaps restrictive — interpretation of privacy at work.

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