Right to privacy vs. accountability Executive Editor Frank Pine
Posted: 06/19/2010 09:12:51 PM PDT The Supreme Court ruled last week that the city of Ontario did not violate a former police officer's right to privacy by reviewing text messages on his government-issued pager.
The case derives from a 2003 lawsuit in which a police officer sued the city, claiming city officials had no right to review personal communications between himself and other city employees, one of whom was his wife.
It seems the officer was one of 20 employees who was issued a two-way pager in 2001. The device allowed employees to send and receive text messages. While text messages are a pretty standard form of communication these days, it was a novel concept back then. Some city employees sent a lot of text messages — so many, in fact, that they exceeded their limit and incurred additional charges from the service provider. Anyone who has ever received an unexpectedly high phone bill due to a family member (usually a child, but sometimes a spouse) having suddenly discovered the joy of text messaging can probably relate. When this happened in Ontario, back in 2002, the city conducted an investigation to determine just how these text-messaging pagers were being used. As it turned out, employees were sending personal messages to one another with the devices, and some of those messages were even a little saucy. City officials were not happy, and a few officers were disciplined over inappropriate communications. The officers sued the city in 2003, alleging the city had violated their civil rights.
A district court judge ruled against the officer and was overturned by the 9th Circuit Court of Appeal in 2008. Now, the Supreme Court has overturned the 9th, ruling that the city was within its rights to inspect the messages. The case marks an interesting intersection of privacy and accountability. It's disconcerting to think that your communications may be monitored by your bosses, the government, Big Brother or whomever. However, most folks who use corporate e-mail accounts are aware that their companies reserve the right to review any e-mail sent on corporate servers. Such was the case in Ontario, where pager recipients were told that communications on the devices were not necessarily private. They apparently were also told, informally, that they were allowed to exchange personal messages provided they paid out of pocket for any charges incurred for exceeding the message limit, which is exactly what at least one of the officers who ended up suing the city did. Bring on the lawyers. As the case made its way through the system, headed inexorably for the highest of high courts, there was some anxiety and anticipation that the Supreme Court would set precedent on employees' right to privacy by limiting (or not limiting) employers' ability to review the electronic activities of their employees. The court did not do that, though, instead issuing a narrow ruling on this specific case. That's probably for the best, because in fact, this particular case is not simply employee vs. employer. This case is about public employees using taxpayer-funded pagers. While the legal challenge sought a determination on whether city administrators had a right to review the communications of city employees, such a decision would also affect, collaterally, what access the public has to the communications of public employees in general. I'm not suggesting here that the taxpayers should be reviewing the electronic communications of all public employees, because by and large, such communications are probably innocuous — even if they're a bit racy now and again. But the right of access is important, and in some cases, vital to effective oversight and public accountability, especially for elected officials. In this case, the court ruled that the city did have a right to review the messages, which seems appropriate and does not encroach on the public's access to government. But what if the Supreme Court had instead affirmed the 9th Circuit Court's decision? While some would doubtless have touted such a call as a victory for privacy of the individual, would it have come at the expense of the public? | 
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