Sexy Texting May Further Test 4th Amendment Protections

Nate Anderson at Ars describes a case that could test some interesting 4th Amendment issues around use of a newer technology. The suit is being pressed by a SWAT Sgt. Jeff Quon against the city of Ontario, CA. At issue is whether the city had any right to read through the texts the cop sent with his city issued pager. City officials were prompted to pull the records in the face of repeated overages, despite the fact that Quon paid all the fees. The records revealed a mass of intimate messages sent and received by Quon, far outstripping an average of about three work related messages a day.

The issue will be heavily informed by the fact that Quon was using a device that was owned by the city. Traditionally this has been much more clear cut then monitoring of privately owned devices. Anderson has a good point in his conclusion, one that has little to do with the rampant criticism of the seeming technology illiteracy exhibited by some of the judges during oral arguments.

If the norm is moving further towards workers making consistent, partial personal use of corporate assets, does that beg at least some minimal expectation of privacy? If the judges answer even a bit in the affirmative, that could significantly reshape the contours of privacy in the workspace.

3 Replies to “Sexy Texting May Further Test 4th Amendment Protections”

  1. My question: Why should an employee expect privacy for communications from an employer-owned device? Just as an employer has the right to read everything produced by a desk-based employee’s desktop machine, it seems reasonable to expect that employer to retain the right to peruse everything created or received by an employer-owned wireless device.

    If you wish to send and receive messages privately, use a private device. I.e., get your own.

    1. That is a fair view and the one that courts have traditionally followed. Laws tend to follow the norms, however. In the privacy space, this could be one where where such a shift might favor the individual where other such movement tends to favor corporations–a la Zuckerberg’s and Schmidt’s flip remarks about privacy being dead.

      1. I confess to a certain chill here. My reasoning was based on the “his house, his rules” principle about which Tee Morris jokingly reminds us–that is, “It’s my stuff, so I get to dictate how you use it.” At the same time, I recall with a shudder that even though it’s my home and my swimming pool, if someone breaks in and drowns in that pool I’m liable. I’m still not sure exactly what rights the interloper has to the pool, other than not being killed by it–but the point is made: My domain is not absolute. Still, I don’t have to like it.

        As for privacy being dead, I’m realistic enough to know that I can’t hide everything from a sufficiently determined data miner. I also shouldn’t be surprised if he or she uses what’s pulled from the data streams (veins?) as a basis for legal action against me. By the same token, I would be understandably indignant–and feel injured–to find that my employee was making assignations on my time … and furthermore was using my equipment to do it.

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