Text Messages Have Their Day in Court…Sorta

Privacy, digital communications, appropriate work activities and the Fourth Amendment collide as a California police officer sues – and loses – for being disciplined for texting too much on the job.

The Problem

Ontario, California SWAT team member Jeff Quon is probably like most other tough, courageous and valiant police officers except for one small detail: he really likes using his city-supplied pager to send text messages.

And furthermore, Quon evidently likes doing this despite being warned, repeatedly, by his lieutenant that his text usage would (and could, and was) audited, and despite signing a policy and attending a meeting that basically said: don’t do this kind of thing. In fact, Quon previously reimbursed the city for overages resulting from too much texting; a habit that, regrettably, the payment didn’t break because he just kept on textin’ (good buddy).

He’s Just a Love Machine

After months (yes, we said months) of this, Quon’s chief decided to determine if the problem was the city’s texting plan being too low for work-related messages, or if the problem was Quon’s excessive personal use. In reviewing transcripts a one month period, the chief discovered:

• Quon received 456 texts, of which 57 were work-related

• On one day, Quon sent and received 80 texts, of which 3 were work-related

• The vast majority of texts were sexually-explicit and sent to Quon’s wife and mistress (in case you were wondering)

Quon was subsequently disciplined for his…enthusiasm. And that’s when Quon fought the law, and the Quon won. And then lost.

Judge vs. Jury?

After being disciplined, Quon sued the city on grounds that his Fourth Amendment rights had been violated. A district court agreed with him, but a jury found the chief’s actions reasonable since they were done to determine the policy limits of text messaging. As such, the court entered judgment for the city and against Quon. That was round one.

In round two, Quon appealed to the 9th U.S. Circuit Court of Appeals on grounds that the search of his text messages was “not reasonable in scope,” because the chief could have used less intrusive means. Quon’s Fourth Amendment rights were found to not be violated, and the city was said to have acted reasonably. Case closed. Kinda.

The Future

Many observers had hoped that the high court would take a strong position and provide clarity. Instead, they witnessed the court avoid the rare opportunity to directly address the complex issue, and pave the legal way for the future of privacy and digital media.

The only thing clear about this issue is that we haven’t heard the last word (legal or otherwise) on who “owns” information – users, employers, sponsors or any other party — when technology intersects privacy.