Legal Lunacy: I Wanna Sext You Up - but I'm at Work Right Now

A recent article by MSNBC contributor Eve Tahmiciolgu has made me aware of yet more legal lunacy that I simply cannot ignore: Sex-texting ("sexting") in the workplace using employer-issued equipment all while fully expecting a right to privacy - simply SWS, Sexting While Stupid.

Facts:

Sgt. Jeff Quon, California SWAT, used his City-issued pager for business and personal use, just like most American employees.

Sgt. Quon signed a statement acknowledging that he read and understood the general policy on computer, internet and email use, just like most American employees.

The Department had an "informal" policy governing the use of pagers. Employees were allotted 25, 000 characters each month. If they went over their allotment, the City was required to pay for overage charges incurred. This informal policy allowed employees who went over their allotment to reimburse the City, no questions asked. Audits would only occur in the event employees failed to pay for their overages.

Quon based his expectation of privacy on this informal policy.

The lieutenant responsible for following and thus enforcing this informal policy began to feel like a bill collector due to the chronic overages and numerous reimbursements he had to solicit from the same employees every month.

Without advance warning, the police personnel audited Quon's sent and received text messages for the purposes of uncovering misconduct.

Though the nature of Quon's personal use is irrelevant in this case, it does speak to his incredible breadth of stupidity, I mean lunacy. You see, Sgt. Quon was exhanging excessive numbers of sexually explicit text messages to his wife and mistress while on duty.

Quon, his wife, mistress, and another sergeant sued the Police Department, the City, and the paging service provider for violating their right to privacy.

They won. The City and Department are appealing to the US Supreme Court.

In support of stupidity:

The City had no official policy specifically addressing text messaging by pager.

In support of sanity:

The City had a standard "Computer Usage, Internet and Email Policy", as most companies do; this policy included the language (you may want to review yours now if you are inclined to Quon-esque behavior)

"...the use of City-owned computers and all associate equipment ...Internet, email and other systems operating on these computers is limited to City of Ontario related business. The use of these tools for personal benefit is a significant violation of City of Ontario Policy."

The policy clearly stated that, "Access to the Internet and the email system is not confidential; and information produced either in hard copy or in electronic form is considered City property." Imagine, images of your assets becoming property of the one who signs your paychecks, nice.

While the policy is silent on text messages and messaging, based on the above policy language, it is reasonable to assume the same rules apply for text messaging.

Long story short, though I confess it may be too late for that, the Department audited Quon's text messages because, according to the court transcripts, "Quon had exceeded his monthly allotted characters by 15, 158 characters." Auditors found that, after reading merely a few lines, that "...many of his messages were personal in nature and often sexually explicit."

The Lunacy:

The District Court believes that the informal policy was enough to afford Quon a reasonable right to privately exchange sex messages via his employer-issued pager in light of the overall general policy governing computer, internet and email use. They deemed the search and audit of his texts to be unreasonable. Imagine that - I am paying you to work and issue you a device to enable you to do that efficiently and most of your device usage is spent sexting your wife and mistress.

Now I concede that the use of the informal policy did give Quon a perception that his messages were "private", but that perception does not substantiate a reasonable and protected expectation of privacy. In this electronic age of infamy, he should have known - and done - better. While Tahmincioglu's article indicated that workplace privacy rights may hinge on this case, I would like to submit this to you - the rediscovery of common damn sense!

Technology is great; it may complicate the life-work balance by increasing our accessibility and ability to multitask more than necessary. However, certain lines are not at all blurry regardless of how much technology lends itself to them; i.e. work when you're at work and sex when you're at home/car/grassy knoll/wherever.

The actions of a few Quons could very well remove the employee benefit of occasionally checking email and maybe a hot new recipe/dating site/celebrity blog/whatever from the rest of us who don't abuse it.

I'm officially on Supreme Court watch. Stay tuned.