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Justices Uphold Review Of Officer's Text Messages

The Supreme Court ruled unanimously Thursday that a California police sergeant's employers did not violate his right to privacy when they reviewed transcripts of text messages sent from his government-owned pager.

The decision in City of Ontario, California v. Quon marks the high court's first word on the boundaries of electronic monitoring in the workplace. Justice Anthony Kennedy, writing for the court, said the ruling is a narrow one -- not the definitive statement on privacy and electronic messaging in the workplace.

"Prudence counsels caution before the facts in this case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations of employees using employer-provided communication devices," Kennedy wrote.

But the issue nonetheless attracted wide attention because electronic communication is so essential in modern life.

Lewis Maltby, president of the National Workrights Institute, said privacy advocates had "dodged a bullet" with the ruling, because the court rejected a bid by employers to extinguish a broad expectation of privacy for public sector workers.

"Unfortunately, the current court has been a wrecking ball when it comes to human rights and privacy," Maltby said.

He urged Congress to carve out more protection from electronic monitoring for all workers at a time when technological advances offer employers a chance to track employees' every movement.

Lower Court Ruling Overturned

The Supreme Court decision overturned a contrary ruling by the U.S. Court of Appeals for the 9th Circuit, which had given Jeff Quon a green light to sue the city for violating his Fourth Amendment rights against unreasonable searches and seizures of property.

Police officials said they reviewed the text messages because employees had been routinely exceeding the limits of their text plans and paying for overage fees themselves. Department officials wanted to know, they said, whether employees were being asked to pay for work expenses out of their own pockets, or whether the city was footing the bill for personal communication.

A review of the transcripts revealed messages between Quon and his wife, Jerilyn, from whom he was estranged. He also exchanged intimate texts with his girlfriend, April Florio, another police department employee.

Internal affairs investigators pulled two months of transcripts and concluded that of 456 messages Quon sent or received during work hours in August 2002, no more than 57 were related to his job.

Ontario police officers had been put on notice that their e-mail messages and texts could be subject to oversight by department supervisors.

Public Vs. Private

The decision left open the question of whether public sector employees would be treated differently on privacy questions than would workers for private employers.

In his opinion, Kennedy wrote that he hesitated to "elaborate too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear."

That drew fire from Justice Antonin Scalia, who wrote in a concurring opinion that "applying the Fourth Amendment to new technologies may sometimes be difficult, but when it is necessary to decide a case we have no choice."

Scalia continued: "The court's implication ... that where electronic privacy is concerned we should decide less than we otherwise would ... or that we should hedge our bets by concocting case-specific standards or issuing opaque opinions is in my view indefensible."

"The times-they-are-a-changin' is a feeble excuse for disregard of duty," Scalia added.

For some people, e-mail and texts have become an all but essential part of daily life.

The Electronic Frontier Foundation, which wrote a friend of the court brief in the case, pointed out that many employers allow personal use of BlackBerry devices and pagers because it makes workers more efficient. And some states have passed laws that force companies to let employees know their electronic communications will be monitored.

Andrew Pincus, who filed the brief on behalf of the Electronic Frontier Foundation and other privacy advocates, called the ruling a true "judicial minimalist" approach. Pincus said that lower courts need to grapple with emerging questions, such as government attempts to read e-mail without a warrant in cases where private employers already have a right to review employee messages.

"Let the courts get some experience before we do something," Pincus said. "Let the issue percolate for a while."

The Obama administration's solicitor general had supported the city in the case, asserting that workers did not enjoy a reasonable right to privacy when using employer-provided electronic devices.

Kent Richland, a lawyer who represented the city of Ontario, said he was "very gratified" by the decision.

"We felt all along the city's conduct had been reasonable," Richland said.

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Carrie Johnson is a justice correspondent for the Washington Desk.