High court must set clear rules on texting

An appeals court has muddled the matter by ruling that employees have a right to privacy even when texting on employer-issued devices.


When you send text message and e-mails to friends on cell phones, pagers or computers owned by your employer, do you have an expectation of privacy?

Until recently we would have assumed the obvious answer would be no. After all, the employer — whether a private company or government agency — owns the equipment. Therefore, they own — control — what is on that equipment.

But the San Francisco-based U.S. 9th Circuit Court of Appeals sees it differently in a case involving a police chief who read text messages sent by police officers in his department.

The chief said he read the messages sent by four officers to determine if the police department-owned pagers were being misused.

The chief determined they were as some of the texts were sexually explicit and not work-related.

Sgt. Jeff Quon and three other Ontario, Calif., police officers sued after they learned their messages had been read.

The 9th Circuit judges apparently broke new legal ground by ruling the police officers had a "reasonable expectation of privacy" in their text messages.

A supervisor had led the officers to believe they could use their pagers for personal use, the appeals court said.

Until last year’s ruling, the prevailing opinion among judges in such matters was that employers who provide computers, cellphones or texting devices for their workers are entitled to control how these devices are used.

The majority of employers — including the city of Ontario — have formal policies making it clear employees do not have a privacy right when they were sending e-mails or other messages.

Ontario told employees it "reserves the right to monitor and log all network activity including e-mail and Internet use, with or without notice."

Frankly, it’s puzzling why the 9th Circuit would turn the conventional judicial wisdom upside down.

Even if a supervisor had told one or more of the officers that pagers could be used for personal messaging, written policy — which is made available to all employees — supersedes that mistaken opinion.

Last week the U.S. Supreme Court agreed to rule on the matter.

The high court’s decision will serve as the guide for workplace rules for employees who use computers, cellphones or texting devices as part of their jobs.

We believe the high court should, and likely will, reverse the 9th Circuit’s opinion.

The common-sense policies on electronic messaging devices put in place by most of the nation’s employers, whether businesses or governments, should be allowed to stand.


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