Does The Fourth Amendment Protect E-Communications?

Are personal messages sent by an employee over an employer's network private? That is the issue the U.S. Supreme Court will examine as it reviews a case in which a California police officer was challenged by his department over private text messages he sent.

In June, 2008, the 9th U.S. Circuit Court of Appeals ruled that the City of Ontario had violated Officer Jeff Quon's privacy when it challenged Quon on his text messages, many of which were personal and some were sexually explicit.

In supporting the officer, Judge Kim McLean said he "had a reasonable expectation of privacy in the text messages," which were sent over a department-issued Arch Wireless pager. However, Judge McLean added that the "extent to which the Fourth Amendment provides protection for the contents of electronic communications in the Internet age is an open question."

The city, however, supported its stance against Officer Quon. In a filing, the city's attorneys said: "To warrant Fourth Amendment protection, a government employee's expectation of privacy must be one that society is prepared to consider reasonable under the operational realities of the workplace." They maintain the city should not have to pay for the officer's messages, which was used for "personal and highly private communications."

The police department had contacted Arch Wireless and requested transcripts of messages sent to and by Officer Quon.

The California court was deeply divided on the issue and appeared to have tailored its ruling for review by the high court, according to legal experts who have followed the case.