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Do employees have Right-of-privacy when using work-issued communication devices?

by Robert Randle  
4/21/2010 / Politics

Ontario, CA police Sgt. Jeff Quon sued the city for what he considers a violation of his Fourth Amendment Rights, the Right of Privacy, when his boss (the Chief of Police) gained access to his text messages. Quon is a member of the elite SWAT unit and along with all the other communication devices and equipment that each officer utilizes to enhance their ability for rapid deployment in an emergency situation, a pager is the latest additional to their arsenal of crime-fighting tools. Although pagers are not covered in the departments "written policy," still, all the officers, including Quon, were given sufficient warning that the pagers were covered in the policy as well. Also, Sgt. Quon has signed a letter acknowledging agreement with the city policy pertaining to the fact that there were no "privacy rights" regarding the use of city computers and communication equipment.

Although one could argue that 'pagers' aren't specifically mentioned in the policy but it can be thought of as "implicitly" stated in the draft just as if were mentioned verbatim. This case has made it all the way to the Supreme Court of the United States on a "Writ of Certiorari" and the Justices have weighed the evidence and listened to the oral arguments from legal counsel delivered by both the Plaintiffs and Defendants.

The ruling by a majority of the Justices could very well establish legal precedent regarding the broader issue of 'Privacy' in general in light of growing technology which seem to blur the otherwise well established line between the public and private domain; especially when it comes to the accumulation, assimilation, and sharing of information, and perhaps more importantly, who is entitled to have access to it. Since the Fourth Amendment is cited as the main "witness" for the Defendant (Sgt. Quon) and counsel Dieter Dammier, it is therefore prudent to examine what this Constitutional provision states.

The Fourth Amendment guarantees that a person shall be protected from "unreasonable" searches and seizures by the Federal and State Government without probable cause, and that any Warrant or Oath authorizing such action must particularly describe the (1) place to be searched, the (2) person searched or the (3) things to be seized. In effect, because of the aforementioned stipulations the individual can feel secure in their person, houses, papers, and personal effects against illegal search [personal, private property or residence], and against forfeiture, seizure, confiscation of anything that a person owns or controls.

This statute does appear to protect the "right of privacy" is a rather limited way but it certainly DOES NOT pertain to the matter that the Supreme Court Justices have deliberated on. The thing is the 9th Circuit Court of Appeals erred when it overturned the Trial Court's verdict which agreed with the city of Ontario, and the original petition filed by counsel for Sgt. Quon [City of Ontario v. Quon, No. 08-1332] should have been dismissed because it was without 'merit.' The Supreme Court should remand the case back to the Appellate Court and order them to reverse their previous ruling.

The problem is because of the complexity of modern society, some activist Judges have tried to legislate from the Bench instead of applying the Law as it is written, taking into account that not all judicial decisions are forward-looking and changing circumstances may require fresh reinterpretation based upon the values and social experiences of people in present times. That being said, one cannot rationally apply a statute that protects personal property and domicile to a situation outside the home and in possession of and using non-personal equipment issued by an employer. Not only that, but the case fails the "reasonableness" requirement by a 'tryer of fact' [Judge or jury] because would a 'reasonable' person have an expectation of a "right of privacy" using a company-issued pager, cell phone, computer, telephone, copier, video camera, walkie-talkie, etc.? There are a few legal experts who seem to think that the Ninth Amendment applies to this case as well; and it says: The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

Unfortunately, the Founding Fathers did not enumerate what these rights are at this place, but some of the ones that they might have had in mind could be the ones mentioned in THE DECLARATION OF INDEPENCE, second paragraph: We hold these Truths to be self-evident, that all Men are created equal, that they are endowed with their Creator with certain inalienable Rights, that among these [not the complete list] are Life, Liberty, and the Pursuit of Happiness-That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed [Tenth Amendment??], that whenever any Form of Government becomes destructive to these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.

There is another issue which receive brief mention from a few of the Justices, but which has largely gone under the radar, but which is vitally important, namely, the "right of privacy" of those to whom Officer Quon sent and received text messages. It is of little consequence about the 'content' of the messages shared between adults, although according to some reports, some of the content has been described as 'racy,' which is just another way of saying that some of it was "sexually explicit."

Texting between individuals, whether thru a cell phone, pager, or computer could be viewed as privileged communication and protected under the First Amendment as Freedom of Speech. No agency or employer should have the right to listen to or have a transcript of an electronic conversation between persons, which is tantamount to eavesdropping or wiretapping unless the information is pertinent in some kind of probable cause scenario where there is at least circumstantial evidence or credible information of a criminal conspiracy to act illegally or after the commission of such an act.

It is a little unnerving to think that someone's personal and intimate expressions have no guarantee of confidentiality and can be available to anyone, even if it is used, just as in this pending case for disciplinary action of the other party. It doesn't stop with the city and its policy, but what about the responsibility or rather liability of the service provider for the pagers because they were the ones who turned over the information to the police department in the first place?

The ruling from the Highest Court in the land will doubtless impact millions of workers in America who use company-issued cell phones, Blackberries, etc., and depending upon the verdict, might just opt out on using devices that they feel might just compromise their right to have what they say or text to remain private; to be shared only just between them and their recipient.

Robert Randle
776 Commerce St. #B-11
Tacoma, WA 98402
April 20, 2010

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