The Supreme Court has agreed to hear a case regarding employees' constitutional privacy rights with respect to text messages sent from an employer-paid mobile or pager device. In City of Ontario v. Quon, members of the city's SWAT team were given pagers with a limited number of employer paid text messages. The employees were told that they would be financially responsible for any texts over the monthly allowance. The city of Ontario had a formal policy reserving the right to monitor network activity including email and internet usage and cautioned employees they they should have no expectation of privacy in such usage; however, the policy did not address text messages. A department official informally told the SWAT team that no one would read their text messages if the employees personally paid for charges above the monthly allowance. Subsequently, the department official ordered transcripts of messages sent and received by Sgt. Jeff Quon and found that in one month, the Sgt. made approximately 400 personal text messages, many of which were sexually explicit in nature.
The case is a first on Fourth Amendment protection in data networks and while it involves government workers, the decision could have broader privacy implications. The 9th U.S. Circuit Court of Appeals in San Francisco said the informal policy stated by the department official was enough to give the employees a "reasonable expectation of privacy" in their text messages and establish that their constitutional rights had been violated. However, Judge Kim Wardlaw acknowledged in her opinion that there is little to guide judges in this area, "The extent to which the Fourth Amendment provides protection for the contents of electronic communications in the Internet Age is an open question."