Sexting SWAT Officers Should Go

After a federal appeals court in Ontario, California decided that Police Sergeant Jeff Quon had no right to privacy when using his department-issued pager, the matter has now been passed on to the highest court in the land. On Monday, the U.S. Supreme Court announced it would hear the case, on which a ruling could have broad implications to anyone using employer-issued technology.

When officials at the Ontario Police Department reviewed messages sent over Quon's mobile device (a pager) they found most of the messages to be, "of a sexually explicit nature," leading to disciplinary action. A SWAT (Special Weapons and Tactics) officer, Quon and other fellow team members sued the department on the basis that by examining the messages the agency had infringed on their right to privacy.

Quon is the latest in a string of people in the media whose sexually-explicit messages have landed them in trouble. When voicemail and texts surfaced between Tiger Woods to his alleged mistresses, his marital problems went from bad to disastrous. The difference here is that Quon's case involves sexually graphic messages transmitted through employer-owned equipment.

In order to resolve Quon's case, Supreme Court Justices will need to consider issues regarding free speech and privacy rights. According to information provided by CNN, "Courts have said that private communications - even when delivered or transmitted through a public portal - are generally protected from "unreasonable search and seizure," such as handwritten letters sent in sealed envelopes through the U.S. Postal Service." In this case, it is more the Fourth, not the First, Amendment that is in question.

In theory, the Fourth Amendment was originally intended to guard against illegal search and seizure. It states, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

In the past the Supreme Court has ruled that the Fourth Amendment does not specifically guarantee a right to individual privacy. However, the court has also ruled that there is an implied "reasonable expectation of privacy," referring to "right of the people to be secure in their persons" (Katz v. United States, 389 U.S. 347 - 1967). But does this defense apply to company-issued communication devices?

It's doubtful, since the device used in the Ontario case was owned by the sergeant's department specifically to be used for work-related communications. The real question, however, is how far may an employer go in monitoring the private communications of its workers on company-issued equipment before it becomes a violation of free speech or privacy rights?

Any reasonably intelligent person should be able to understand that devices owned by an employer and issued for work are not the personal property of the employee. Therefore, there is no expectation of privacy - either stated or implied. If they own it, they should be allowed to know what it's being used for and audit that use at their discretion.

How does all of this affect the rest of us? If the Supreme Court rules in favor the "reasonable expectation of privacy" defense then, in the future, private messages sent over employer-issued devices will be protected under the Fourth Amendment. An outcome of this nature begets two new problems, however.

First, the employer has lost control over how business equipment is used, possibly increasing the cost of its operation. Secondly, if someone were harmed because of misuse of these devices, say a domestic problem like cyber stalking, the employer may be held liable in some fashion since they would have no legal grounds to stop the employee from sending private messages.

If the court rules conversely, then people who want privacy from their employers will simply need to stop transmitting private messages over company-issued devices. No harm, no foul.

Behavior like this is childish and expensive. One would think that the taxpayers of Ontario, California (or anywhere else for that matter) would be outraged that this group of muscle-headed adrenaline junkies was using publicly-owned equipment for their adolescent "sexting" activities instead of doing their jobs. Fire them and be done with it. It's ridiculous and wasteful that a case like this even made it to federal court, let alone Washington.