Washington, DC – The Center for Democracy & Technology joined other civil liberties organizations in a friend-of-the-court brief filed yesterday with the United States Supreme Court in a case that could have major implications for privacy in the workplace and beyond. The signatories – CDT, the American Civil Liberties Union, the Electronic Frontier Foundation, and Public Citizen – urged the Court to recognize a privacy interest in personal messages when a government employer allows employees to use text pagers, email and other employer-provided services to communicate with family and friends.
The brief argued that, in considering whether an employee retained an expectation of privacy in personal messages, the courts must consider the practical realities of modern life and the actual practices of the particular workplace, in addition to any written policy the employer may have.
The brief also urged the Court to focus on the unique issues associated with government employers and not to draw broader conclusions that could undermine privacy expectations of private sector employees. Moreover, the advocates urged, the Court should avoid making any statements that could call into question the privacy of electronic communications in general.
“Average Americans have become totally dependent on cell phones, texting and the Internet, but so far the Supreme Court has said little about how the Constitution applies to these technologies,” said CDT vice president Jim Dempsey. “An unnecessarily broad opinion from the Court could have a significant negative impact on the privacy of technologies that are fundamental to modern life.”
Background
The case – City of Ontario v. Quon – is one of the first opportunities for the Supreme Court to consider the application of the Fourth Amendment to electronic communications media, but it arises in an unusual context. The police department in the city of Ontario, California issued text-messaging pagers to some of its officers and gave them permission to use the pagers for personal purposes if they paid for any overage charges. At the same time, the city’s written policy on Internet usage reserved the right to monitor network activity; there was some confusion about whether the policy applied to the text service. When one officer consistently went over the allotted character limit, and his supervisor got tired of collecting overage charges, the department asked the service provider to turn over copies of the officer’s messages, which the service provider routinely stored, to see if the overage was work-related or personal. Some of the private messages were sexually explicit. The officer at issue, his wife and two others who communicated with the officer sued on both statutory and Constitutional grounds.
It has long been established that government employees retain their Fourth Amendment rights. While supervisors do not need a warrant to search offices and other work-related places, they do need to act “reasonably” in carrying out any search.
The brief filed by CDT and other privacy advocates argued that the search in this case was unreasonable under the Fourth Amendment because it unnecessarily involved reading the actual content of the private messages. However, the groups also urged the Court to focus on the narrow facts before it – supervisory searches of government employees — and to avoid extending its opinion to cover law enforcement investigative access to the communications of private or public sector employees generally.