Doculabs

Just how important is it to have clearly defined policies and procedures for the use of employer-owned mobile devices? A pending U.S. Supreme Court case may offer an answer.

The case is City of Ontario v. Quon. It concerns Jeffrey Quon, a member of the police department in the city of Ontario, California, and his use of his police department pager. Some background: The city was assessing the usage of its police pagers to determine whether to increase the character allotment. As part of this assessment, it reviewed transcripts of the text messages of two officers, one of whom was Quon. The transcript showed Quon had been using his pager to transmit not just work-related text messages, but also a significant number of questionable personal messages – specifically, text messages between Quon and his wife, and between Quon and his mistress, some of them apparently rather racy.

Right now you may be thinking, “Not looking so good for Officer Quon.”

But Officer Quon took the city to court, claiming the city had violated his privacy rights under the Fourth Amendment, which forbids unreasonable government searches. A lower court ruled in favor of Quon, and the city then took the case to the Supreme Court. Arguments were heard on April 19, and a decision is expected by the end of the Court’s term in June.

The case will likely be decided by what the Court defines as Quon’s “reasonable” expectation of privacy, which is the test under the Fourth Amendment.

The Justices have a few other complications to sort out, however, to decide this case. It turns out Quon had read and signed a written city policy that explicitly stated there were no privacy rights in the use of city-owned computers and related equipment. According to the city’s lawyer, Quon and his colleagues were informed when they received their pagers that the same policy would apply to their use of pagers.

As policies go, it sounds pretty clear. So it ought to be pretty straightforward, right?

But wait; there’s a wrinkle. After the officers had been using their pagers for awhile, a supervising officer informed Quon and his team members that their text messages would not be audited so long as they paid for any messages over a monthly maximum. That’s the policy Quon apparently went by in the use of his pager: “If I pay for it, it’s mine. And it’s private.”

The city’s argument before the Court was that, based on the written policy, Quon had no “reasonable” expectation of privacy. But does a supervisor’s statement trump the city’s written policy? That’s what Quon’s attorney argued. He also pointed out that Quon in effect worked 24/7, which led to a melding of his private and work lives – and so there had to be some expectation of privacy regarding his personal messages.

Suffice it to say there was judicial skepticism toward both sides of the argument.

But stay tuned. No matter how the Justices come down on it, this case just might get organizations in both the public and the private sectors to pay some much-needed attention to the new forms of electronic communications their employees are coming to rely on to do their jobs. Let’s hope it also gets them to establish and implement corporate policies and procedures defining appropriate use of those communications. But like Officer Quon, many of us no longer work a 9-to-5 schedule; many of us telecommute — from home, or wherever we happen to be. As more of us experience a melding of our private and our work lives, the policies organizations create and put in place for these tools must reflect these new realities.

In the meantime, to those whom it may concern, it just might be good personal policy to get a mistress-dedicated mobile device to use when sending and receiving racy personal messages. But I seem to recall John Edwards tried that already – and we all know how well that worked for him.