That Work Pager? Nope, Not Private.

June 17, 2010 12:45 PM

The U.S. Supreme Court has ruled unanimously against a fourth amendment claim of a right against an employer search of texts on a work pager. The decision, City of Ontario v. Quon, rejected the claims, by the officer and by others who texted him on the device, that the employer city and the city's service provider violated their rights by reviewing transcripts of the text messages. Justice Kennedy's decision assumed the officer had a reasonable expectation of privacy. However, he said, the city’s search was not unduly intrusive. There was a “legitimate work-related purpose” for the audit, Justice Kennedy wrote. The city “had a legitimate interest in ensuring that employees were not being forced to pay out of their own pockets for work-related expenses, or on the other hand that the city was not paying for extensive personal communications.” Interestingly, the officer's direct supervisor had told him that he could use the pager for personal messages, as long as he paid their cost. Kennedy nonetheless opined for the Court that he likely only had a "limited privacy interest." The Court did not reach the question of whether there is an employee privacy interest in email on work servers, or conversations on work telephones.
posted by bearwife (57 comments total)

Hold on: they ruled against the employer's right to search? I can't make heads or tails of that sentence.
posted by mr_roboto at 12:47 PM on June 17, 2010 [3 favorites]

No, they ruled against the claim that, due to the 4th amendment, the employer should not be able to search. Ergo, the employer is able to search.
posted by cavalier at 12:48 PM on June 17, 2010

Also, who uses pagers?
posted by mr_roboto at 12:48 PM on June 17, 2010 [1 favorite]

The US Supreme court has upheld the right of an employer to search texts on a work pager.

So all the non-lawyers can parse that.
posted by JaredSeth at 12:49 PM on June 17, 2010 [4 favorites]

Damn...too slow.
posted by JaredSeth at 12:50 PM on June 17, 2010

Sorry, I am too used to the double and triple negatives of my profession.
posted by bearwife at 12:50 PM on June 17, 2010 [1 favorite]

And, more specifically, maybe I'm old fashioned, but if I have a device that's paid for by someone other than me, I assume that that someone other has full rights to the device. YMMV.

Now, I think the exception they were hoping for, as linked in the LA Times piece, is that by paying for the extraordinary service on the pager he might feel he was paying for the device. My trouble with this is he was not paying for the full cost of the device, even if he was only paying partial, regardless of his communication with his supervisor.
posted by cavalier at 12:51 PM on June 17, 2010 [1 favorite]

And, more specifically, maybe I'm old fashioned, but if I have a device that's paid for by someone other than me, I assume that that someone other has full rights to the device.

That's not "old fashioned", that's very much the current situation. And goes double for devices that you get email on, by the way.
posted by mhoye at 12:56 PM on June 17, 2010

cavalier: "And, more specifically, maybe I'm old fashioned, but if I have a device that's paid for by someone other than me, I assume that that someone other has full rights to the device. YMMV. "

That's how its handled everywhere I've ever worked. If you don't own the device then you can't expect privacy.

Now, I think the exception they were hoping for, as linked in the LA Times piece, is that by paying for the extraordinary service on the pager he might feel he was paying for the device."

We've gotten a few of those lately, haven't we? Cases that are pushed as setting major, negative precedent when its really about the specifics of that situation.
posted by charred husk at 12:59 PM on June 17, 2010

Never figured out why people assume that a device they don't have full control over is private. Regardless of the legal zigs and zags, there's no way I'd entrust personal communications that would embarrass me if known to my employer or the public to a work computer, phone, or any other communication device. Just seems like basic common sense.

A bit before my time, but my dad is/was a ham radio operator, and he said it was amazing what people would discuss on the precursor to the cell phone - the VHF mobile telephones, which transmitted on FM frequencies close to the police and amateur 2M bands, and which any number of scanners and other devices (like amateur 2M rigs) could pick up...

Technology changes, but people don't get much smarter...
posted by randomkeystrike at 1:00 PM on June 17, 2010 [1 favorite]

This is an unremarkable decision. The Court's decision today in New Process Steel v. NLRB is much more surprising, and significant, as it invalidates 2 years of National Labor Relations Board decisions (pertaining to unions) because the board didn't have a quorum of 3 members. Link here: http://www.supremecourt.gov/opinions/09pdf/08-1457.pdf
posted by seventyfour at 1:01 PM on June 17, 2010 [6 favorites]

Right, just want to clarify here that the whole "old fashioned" bit was just a colloquial lark for me -- I'd expect this rationale in any electronic commerce, presently.

If I am not the sole account holder for a device, and even then depending on what that device connects to, I do not assume any privacy for the contents on that device. I guess a better question would be -- right -- who would?
posted by cavalier at 1:03 PM on June 17, 2010

I'm actually more surprised that the court didn't, as Justice Scalia's concurrence urges, issue a stronger ruling that communications on devices issued by the employer are not private, even if a supervisor suggests otherwise. It is a very cautious decision.
posted by bearwife at 1:04 PM on June 17, 2010

The U.S. Supreme Court has ruled...

Whenever I read a headline which starts out like that, I ask myself "Hmm, I wonder which rights we've lost today?"
posted by Avenger at 1:05 PM on June 17, 2010 [9 favorites]

If you don't own the device then you can't expect privacy.

FTFY

Sorry.
posted by kcds at 1:07 PM on June 17, 2010 [2 favorites]

You know what would be awesome? If phones supported two numbers at once. Then I'm not in the awkward situation of needing two separate phones in my life. It would make so many thing so, so much more awesome. Am I receiving an incoming call on my work number on Saturday morning? Straight to voicemail. If work people want to look at my dull work related texts, "Who was the one who signed the original contract?" Have fun boys! I just don't want you to see, "Hey Paul seemed to be going to the bathroom every 5 seconds, is he doing coke again?" because there's some HR drone who always lets their imagination get the best of them.

This really can't be that difficult, and really a lot more important than having a 37% reduction in iPhone weight.
posted by geoff. at 1:12 PM on June 17, 2010 [1 favorite]

Whenever I read a headline which starts out like that, I ask myself "Hmm, I wonder which rights we've lost today?"

In this case, basically none. If you thought you had a right to communicate in private over services and devices provided by your employer, well, there may be no helping you.
posted by valkyryn at 1:14 PM on June 17, 2010 [3 favorites]

You know what would be awesome? If phones supported two numbers at once.

Ask and you shall receive.
posted by mr_roboto at 1:16 PM on June 17, 2010

You know what would be awesome? If phones supported two numbers at once. Then I'm not in the awkward situation of needing two separate phones in my life. It would make so many thing so, so much more awesome. Am I receiving an incoming call on my work number on Saturday morning? Straight to voicemail. If work people want to look at my dull work related texts, "Who was the one who signed the original contract?" Have fun boys! I just don't want you to see, "Hey Paul seemed to be going to the bathroom every 5 seconds, is he doing coke again?" because there's some HR drone who always lets their imagination get the best of them.

Voila!
posted by kmz at 1:19 PM on June 17, 2010

Doh!
posted by kmz at 1:19 PM on June 17, 2010

Yeah this is kind of a no-brainer for people familiar with the field. Is anyone surprised that an employer has the right to monitor its own devices, even if it is aware that some personal communication is going on through them? Yes, the "partial pay" angle makes it fractionally more interesting, but I'm frankly surprised the Court granted Cert.

Do people not get that they have to be careful on work systems? There's substantial case law in some jurisdictions suggesting that you can waive the attorney-client privilege just by emailing your lawyer from work. Now that's a thorny issue. This? Not so much.
posted by The Bellman at 1:22 PM on June 17, 2010 [1 favorite]

So, if the person in this case was using a separate SIM, would he have been safe?
posted by furiousxgeorge at 1:25 PM on June 17, 2010

My employer headed off a lot of grief, for them, and for employees by giving people required to carry cellphone for work stipends, based on several years of bills, averaged out. I am expected to keep my phone, but now it's MY phone, and I would assume that it would not be subject to the same legal standing as this officers phone was in this decision. I could be wrong though. Don't wanna test it.
posted by Danf at 1:25 PM on June 17, 2010 [1 favorite]

In this case, basically none. If you thought you had a right to communicate in private over services and devices provided by your employer, well, there may be no helping you.

Oh, I never thought that I had that right - but I'll support fight for it simply out of spite for the Court.

And no, there probably isn't any "helping" me.
posted by Avenger at 1:25 PM on June 17, 2010

geoff. : You know what would be awesome? If phones supported two numbers at once. Then I'm not in the awkward situation of needing two separate phones in my life.

Google Voice gives you pretty much exactly what you are looking for.
posted by quin at 1:32 PM on June 17, 2010 [2 favorites]

This seems perfectly reasonable.
posted by Pope Guilty at 1:35 PM on June 17, 2010

I have to agree to having my computer usage monitored every time I log on in the morning. We are explicitly allowed to surf, email, and do other personal things, but we are told, every morning, that our on-line activities are not only being watched, but could lead to dismissal or prosecution if we do anything we're not supposed to. It's always seemed perfectly reasonable to me.
posted by MrMoonPie at 1:38 PM on June 17, 2010 [1 favorite]

Yeah, quin I was going to recommend GV, but apparently it is still invite only.

There's substantial case law in some jurisdictions suggesting that you can waive the attorney-client privilege just by emailing your lawyer from work. Now that's a thorny issue. This? Not so much.

!!! Wow, see, stuff like this -- this makes me want to stop time for 8 years, go back to school, hit law school, get my JD, and start some shit. That's a fun fight.
posted by cavalier at 1:44 PM on June 17, 2010

Now we just need a ruling on if a suspect can be issued a DUI if he is found "drunk as hell, but no throwin' up."
posted by drjimmy11 at 1:51 PM on June 17, 2010 [1 favorite]

!!! Wow, see, stuff like this -- this makes me want to stop time for 8 years, go back to school, hit law school, get my JD, and start some shit. That's a fun fight.

Just don't go to law school now, you won't be able to get a job :P
posted by delmoi at 1:52 PM on June 17, 2010

My dad's a labor attorney, and we talked about this long ago. Even then (early '90s) he said that employees do not have a reasonable expectation of privacy on work computers or on employer-owned devices. YMMV. IANAL. But this doesn't surprise me, and I don't think it's anything new.
posted by krinklyfig at 2:00 PM on June 17, 2010

A bit before my time, but my dad is/was a ham radio operator, and he said it was amazing what people would discuss on the precursor to the cell phone - the VHF mobile telephones, which transmitted on FM frequencies close to the police and amateur 2M bands, and which any number of scanners and other devices (like amateur 2M rigs) could pick up...


I remember when we had a CB as kids and well we treated it like a bunch of kids. Farting at and messing with truckers was fun. The landlady threatened to call the FCC on us. For what? A bunch of kids farting?

Toot, breaker breaker. Toot!
posted by stormpooper at 2:09 PM on June 17, 2010 [1 favorite]

cavalier: Yeah, it's probably worth an FPP, in fact. Maybe I'll pull one together.
posted by The Bellman at 2:15 PM on June 17, 2010

Whoa, you mean people/corporations can actually LOOK at their own property?

I AM SHOCKED!!! SHOCKED I SAY!!!
posted by blue_beetle at 2:25 PM on June 17, 2010

Google Voice gives you pretty much exactly what you are looking for.
yeah, unless you're in europe. I tried to set that up with an nyc number once and failed miserably.
posted by krautland at 2:25 PM on June 17, 2010

Oh, I never thought that I had that right - but I'll support fight for it simply out of spite for the Court.

Doesn't make sense to me to spite them for doing the right thing. The court is human, and thus fallible; but they are our last, best hope in defense of bad laws. You can dislike the decisions or the people on it, but The Court stands for good.

/scolding
posted by gjc at 2:39 PM on June 17, 2010

The court is human, and thus fallible; but they are our last, best hope in defense of bad laws.

I almost never hope for a defense of bad laws, but that is me.
posted by bearwife at 2:43 PM on June 17, 2010 [3 favorites]

The court is human, and thus fallible; but they are our last, best hope in defense of bad laws.


This is true, but not in the way you intended.
posted by Avenger at 2:46 PM on June 17, 2010 [1 favorite]

This case might become important, but for the opposite reason.

Remember a while back, all kinds of police departments got into trouble for profiling and discriminating, and this led to the requirement that all police radio communications had to be recorded? And now we never hear about any of these cases?

That's because this all happened right about the same times cell phones became ubiquitous. And what do you see a large percentage of police officers doing while on patrol? Yakking on their cell phones.

At what point do personal devices, but used in the line of duty/business, become relevant? It seems like a huge back-channel loophole to all manner of required recordkeeping and recording laws. Not just for police, but for any profession that has duties like this?
posted by gjc at 2:47 PM on June 17, 2010 [3 favorites]

I think the important rulings here are those by the California District Court and the 9th Circuit Appeals, which both held that the employees did have a reasonable expectation of privacy (first link, pp 9-10), which the Supremes chose to not address, limiting their ruling to the 4th Amendment complaint, alone.
posted by workerunit at 3:21 PM on June 17, 2010

I think you are right workerunit, and that it is a big red flag that Justice Kennedy "assumed without deciding" that there was a privacy interest, and then later in the ruling indicated that at best there was only a limited privacy interst. Another flag is that the Court didn't really give any deference to privacy interests of the parties who joined the suit because their responses (from whatever device) to texts on the pager were also revealed and read.
posted by bearwife at 3:36 PM on June 17, 2010

Good point, gjc. I see police talking on cell phones all the time. When I was police, back in the dark ages, we all knew what "Give me a landline" meant.

Expecting privacy on a work pager is like expecting to drive a work vehicle drunk without repercussions.
posted by QIbHom at 5:00 PM on June 17, 2010

Also, who uses pagers?

Drug dealers, if you believe The Wire.
posted by Mental Wimp at 5:13 PM on June 17, 2010

Also, who uses pagers?

ca. 2004, Amazon.com's on-call staff did, and AFAIK they still do. An old-school pager service was much more robust than sms over a civilian cell phone -- and it still is, I believe.

My pager was the size of a guitar pedal. Walking around with that thing clipped on my belt made me feel like a total poindexter.

It did blend nicely, though. It only lasted a few milliseconds in my osterizer.
posted by Sauce Trough at 5:34 PM on June 17, 2010

Also, who uses pagers?

Anywhere that forbids two-way communication devices, i.e. secret government headcrab labs.
posted by dirigibleman at 6:24 PM on June 17, 2010

I read an article in Business Law International just recently 'Cross-border Challenges for e-Discovery' [pdf], that has some relevant information:

"In general, US law assumes that a corporation owns the data it possesses or controls. Thus, US corporations rarely have to worry that their preservation, processing, review or disclosure of data relevant to a lawsuit would violate any other entities’ or individuals’ rights to the data. In those circumstances, where relevant data is otherwise protected from disclosure (such as if the data contains a third party’s trade secrets, or is classified), litigants work with courts and opposing parties to negotiate an appropriate non-disclosure agreement, allowing the opposing litigator’s access to the relevant data, without violating the necessary confidentiality.

The law in most European countries, by contrast, does not assume that a corporation’s possession of data gives them a right to use it as they see fit. European law generally assumes that individuals, whose personal information is contained within a corporation’s records, retain a right to protect that data from being exported or disclosed to third parties."

I know this is within the context of disclosing to third parties but I was quite surprised to hear the stark differences in attitude. Hopefully, Kennedy's decision will kickstart a change in US legislation to bring it into line with the EU.
posted by unliteral at 6:24 PM on June 17, 2010

My husband is a police officer who is required to be reachable 24 hours a day, as are his fellow officers, so the department provides them with free cell phones. About a year ago, they all got scolded by the city manager for "excessive" use of texting. At the time I asked, "My gawd, have the people who control the city's purse strings never heard of unlimited plans? Surely an unlimited plan -- not just on texting, but on talking too -- would save the city money overall?" Alas, the logic escaped them, and eventually the department's texting "privileges" were cut off, which put a damper on their ability to communicate sensitive information that doesn't always need to go out over the radio to everyone in scannerland.

But, I digress. My point was going to be this: Whenever someone else owns your phone, and pays for its use, don't ever assume that you have any privacy when using it (nor, apparently, any right to access its functions).
posted by amyms at 7:42 PM on June 17, 2010

Also, who uses pagers?

Hospital employees, utility company employees, volunteer firefighters. They're more reliable in places with sketchy cell coverage, which seems to include every hospital cafeteria ever.
posted by little e at 7:49 PM on June 17, 2010 [1 favorite]

But would it have been such an easy case for the Court if the city had read the texts Quon sent/received when he wasn't on duty too? Or if the city chose to audit Quon's texts in every month he went over the limit? The Court does assume he had a reasonable expectation of privacy in his texts, so what exactly does this case tell us?
posted by inara at 8:09 PM on June 17, 2010

Hopefully, Kennedy's decision will kickstart a change in US legislation to bring it into line with the EU.

Hopefully, Kennedy's decision will kickstart a change in US legislation to provide me with a pony.

I will name her Sparkles.
posted by klangklangston at 8:26 PM on June 17, 2010 [1 favorite]

Hopefully, Kennedy's decision will kickstart a change in US legislation to provide me with a pony.

Yeah, you're probably right.

Sparkles just kicked me in the nuts when she was startled by the rainbow I was looking at.
posted by unliteral at 10:37 PM on June 17, 2010

dirigibleman: "Also, who uses pagers?

Anywhere that forbids two-way communication devices, i.e. secret government headcrab labs."

This is totally not true. Don't bring your pager (or any device that receives, transmits, or records) into a secret government lab without expecting a visit from a headcrab...

Also, my doctor boyfriend is required to carry a pager any time he's on the clock or on call. I'm pretty sure most doctors have a Pavlovian response to pagers by the end of Med School. He's very happy when he gets to call in and take it offline.
posted by This Guy at 4:42 AM on June 18, 2010

The Court does assume he had a reasonable expectation of privacy in his texts, so what exactly does this case tell us?

Careful, there. For purposes of the decision, the Court said it assumed that without deciding. But later, Justice Kennedy let slip that the Court really felt that at most there was a "limited expectation of privacy."

If you think that anyone communicating via text message on an employer issued device, including the people who respond to messages from that device, has a real privacy right that the Court will honor, I would say think again.
posted by bearwife at 8:40 AM on June 18, 2010

The US Supreme court has upheld the right of an employer to search texts on a work pager.

This could not possibly be any more incorrect. This is a Fourth Amendment case only. The Court does not address the original complaint's alternative grounds that the city violated the Stored Communications Act, because that issue was not before them. It also did not address any potential state-law basis. "Because the search was reasonable [ed: matches standards of Fourth Amendment constitutional reasonableness], petitioners did not violate respondents' Fourth Amendment rights, and the court below erred by concluding otherwise. The judgment of the Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion." (emphasis added).

The Supreme Court did not decide any substantive issue of employers' rights vis-à-vis employees' use of text messages. They merely reversed the Ninth Circuit's holding that the Fourth Amendment governed where the employer was a state actor. The Ninth Circuit is free to decide the case on other grounds on remand.
posted by thesmophoron at 5:17 AM on June 19, 2010

Also, who uses pagers?
Everyone on Ally McBeal. [I can't believe I'm revisiting this series because of an easter egg].
posted by unliteral at 10:10 AM on June 19, 2010

But later, Justice Kennedy let slip that the Court really felt that at most there was a "limited expectation of privacy."

That's dicta at the most, actually.
posted by Navelgazer at 6:58 PM on June 21, 2010

Thanks, Navelgazer. Actually, reading back over my comment, I think it needs a little clarification. 1) When I said "assumed," I meant "assumed without deciding." 2) This case really doesn't say a whole lot about potential future situations because a) it doesn't actually say whether there's a reasonable expectation of privacy in texts sent from a work pager and b) it doesn't really give any indication of what other fact patterns would lead to a finding that a search of said texts by a government employer doesn't violate the 4th Amendment.
posted by inara at 7:14 PM on June 21, 2010