Are police texts protected under the 4th amendment?

Posted by Mike Luttrell

The Supreme Court is now reviewing a case that tries to make sense of new technology over a 233-year-old statute of law, as electronic communications continue to provide legal conundrums.

It's the case of City of Ontario v. Quon. Sergeant Jeff Quon from Ontario, California is a member of the city's SWAT team. Like other officers, he has a pager for official government use.

However, he used the device to send personal text messages to his wife and his mistress, some of which were sexually explicit. In a standard audit of page use, these messages were exposed and made public. Quon sued the city for illegal search and seizure. He won the case.

But now the Supreme Court is stepping in to see if that was the correct decision. Although there is a written policy that says officers may use the pagers for light personal communication, the majority of Supreme Court justices appear to think that Quon had no reasonable expectation of privacy.

In arguments to the court, Deputy US Solicitor General Neal Katyal said, "When a government employer has a no-privacy policy … ad hoc statements … cannot create a reasonable expectation of privacy."

Justice John Paul Stevens agreed, asking the rhetorical question, "Wouldn't you just assume that the whole universe of conversations by SWAT officers who were on duty 24/7 might well have to be reviewed by some member of the public or some supervisor?"

After all, the pagers are the property of the US government. Where this case gets sticky, though, is in an unofficial policy that allowed officers to pay a monthly charge that gave them free reign of their pagers for personal use, similar to what many companies in the private sector do.

That issue makes the Chief Justice, John Roberts, more skeptical about overturning the lower court's ruling.

"I think if I pay for it, it’s mine and not the employer’s," said Roberts. He is advocating for the opinion that, given the facts of the case, Quon did have a reasonable expectation of privacy. Roberts was in the minority, however, and the way this case goes could mold another piece of the puzzle when it comes to governing electronic communications.

The case is still in progress.