• U.S. Supreme Court Rules Public Employee's Text Messages Not Private
  • June 29, 2010 | Author: John A. Koepke
  • Law Firm: Jackson Walker L.L.P. - Dallas Office
  • The U.S. Supreme Court held that a public employer did not violate an employee's constitutional privacy rights by searching his personal (and often sexually explicit) text messages that were sent and received on his employer-issued pager.


    The City of Ontario, California, issued pagers with text message capability to Ontario Police Department (OPD) SWAT Team members.  When the OPD was charged with overage text message fees, it reviewed transcripts of text messages sent during a two-month period.  It discovered a plethora of non-work-related texts, including some that were sexually explicit.  The offending officer was allegedly disciplined.

    He sued, alleging that the city violated his privacy rights under the Fourth Amendment. The Ninth U.S. Circuit Court of Appeals held that he had a reasonable expectation of privacy in his text messages and that the OPD's search "was not reasonable in scope."


    The Supreme Court held that the search was reasonable and permissible because it was motivated by a legitimate work-related purpose and wasn't excessive in scope.  Although the case involved a public employer, the Court related the situation to private employers.  "For these same reasons -- that the employer had a legitimate reason for the search, and that the search was not excessively intrusive in light of that justification -- the Court also concludes that the search would be 'regarded as reasonable and normal in the private-employer context.'"

    Not a lot should be read into this one decision since it was decided on narrow grounds.  The Court noted that "a broad holding concerning employees' privacy expectations vis-à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted."

    Employers Beware

    The importance of privacy policies which OPD had, like a "Computer Usage, Internet and E-Mail Policy" which clearly specify that employees have no expectation of privacy or confidentiality when using an employer's computers, email, or the Internet, and text messages is obvious. Privacy issues are fact dependent.  Definitive policies consistently enforced can mitigate employers potential exposure for privacy violations in our electronic world.