For the first time, the Supreme Court of the United States will consider how much Constitutional protection text messages are entitled to receive.  And thank goodness for that, since the Ninth Circuit just handed down a ruling that is not only wrong, but calls into question 25 years of case law.  The case is City of Ontario v. Quon, and you can read the Ninth Circuit's mess decision HERE.

These are the facts:  SWAT team members of the City of Ontario Police Department in California were given pagers that through which text messages could be sent and received. The Department had in place a general "Computer Usage , Internet and E-Mail Policy", but the policy did not expressly cover the pagers or text messaging.  Instead, the policy generally provided that personal messages were subject to "access and disclosure."

It was generally known that some SWAT members used the pagers for personal texts on occasion.  Officers that went over their allotted monthly character limits were asked to pay the overage charges.

One officer, Officer Quon, exceeded the monthly limit three or four times.  Each time Quon was asked to pay the overage charges, and on each occasion he did so.  The City did not review any of Quon's messages on those occasions.

One day, the Department decided to order the transcripts of the text messages sent by Officer Quon.  Why?  We'll get to that in a moment...

The Department received the transcripts and discovered (surprise, surprise!) that many of Quon's messages were personal in nature and often sexually explicit.  Quon sued the Department alleging that he had a reasonable expectation of privacy in his text messages, especially in light of the Department's historical reluctance to review text messages from officers that exceeded their monthly character allotment.

The Department argued that they had the right to inspect the messages because the Department wanted to know (i) if personal messages were being sent during work hours (which would clearly violate Department policy), and (ii) if officers were being asked to pay overage charges that were really business-related charges (in other words, the Department wanted to avoid having officers pay overage charges for texts that were work-related.)

The Ninth Circuit agreed with Quon, and found that the Department's informal policy that the text messages would not be audited if the overage charges were paid, rendered Quon's expectation of privacy in the messages "reasonable."

My opinion:  The Ninth Circuit got it wrong.  Way wrong.  So wrong that I can't believe it.  I haven't seen a decision this bad since Brett Favre decided to throw a desperate pass up the middle of the field—which was intercepted—in the final moments of the fourth quarter of the Saints/Viking playoff game.  (I just finished watching the game, so my analogy, at the time of writing, is quite timely).

Under current federal case law (specifically, O'Connor v. Ortega as well as the Electronic Communications Privacy Act), employers (even government employers) have the right to intercept and review communications between their employees and third parties when the equipment used for communicating (such as the telephone, or email server, or pager) is provided by the employer, and where the interception is for legitimate work-related, non-investigatory purposes. 

And what, is exactly, is a "legitimate work-related, non-investigatory purpose."  Hmmmm...how about making sure that employees are generally doing their jobs instead of using office-supplied equipment to goof off.  How about making sure that employees generally are not using office-supplied equipment to conduct illegal activities?  Folks, this has been the law for over 25 years—this isn't new stuff. 

But the Ninth Circuit seems to have forgotten the past 25 years, and wants us to believe that an employer must go through a Constitutional analysis every time the employer wants to know what his employees are doing on company time while using company equipment. 

The dissenting opinion in the case is exactly right, and so I will quote it (below).  Remember this quoted section of the opinion, because I guarantee you that in a year or two the Supreme Court of the United States will reverse the Ninth Circuit and say the EXACT same thing:

         This case is, at its core, a workplace privacy case. The panel turns its back on
         “the common-sense realization that government offices could not function 
          if every employment decision became a constitutional matter.” O'Connor, 480
          U.S. at 722, 107 S.Ct. 1492 (quoting Connick v. Myers, 461 U.S. 138, 143, 
          103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)). By holding that a SWAT team 
          member has a reasonable expectation of privacy in the messages sent to and 
          from his SWAT pager, despite an employer's express warnings to the contrary 
          and “operational realities of the workplace” that suggest otherwise, and by
          requiring a government employer to demonstrate that there are no more less 
          intrusive means available to determine whether its wireless contract was 
          sufficient to meet its needs, the panel's decision is contrary to “the dictates of 
          reason and common sense” as well as the dictates of the Supreme Court. The
          panel's decision undercuts the Supreme Court's consistent and explicit 
          prohibition on reading a less intrusive means requirement into the Fourth 
          Amendment's prohibition on unreasonable searches. It also undermines the 
          reasoning and logic of O'Connor v. Ortega.