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Supreme Court Takes Texting Privacy Case

Soulskill posted more than 4 years ago | from the hi-2-u-juj-scalia dept.

Privacy 184

TaggartAleslayer writes with this excerpt from the NYTimes: "The Supreme Court agreed on Monday to decide whether a police department violated the constitutional privacy rights of an employee when it inspected personal text messages sent and received on a government pager. The case opens 'a new frontier in Fourth Amendment jurisprudence,' according to a three-judge panel of an appeals court that ruled in favor of the employee, a police sergeant on the Ontario, Calif., SWAT team. ... Members of the department's SWAT team were given pagers and told they were responsible for charges in excess of 25,000 characters a month. Under an informal policy adopted by a police lieutenant, those who paid the excess charges themselves would not have their messages inspected. The lieutenant eventually changed his mind and ordered transcripts of messages sent and received by Sgt. Jeff Quon. In one month in 2002, only 57 of more than 456 of those messages were related to official business. According to the trial judge, many of the messages 'were, to say the least, sexually explicit in nature.'"

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Oh wait, what? This again? (1, Funny)

Xaositecte (897197) | more than 4 years ago | (#30436776)

An organization has the right to inspect how its resources are being used? Madness!

Re:Oh wait, what? This again? (3, Informative)

omnichad (1198475) | more than 4 years ago | (#30436824)

Normally I'd agree with you, but the summary says they are explicitly allowed personal use and were told that the messages wouldn't be read.

Re:Oh wait, what? This again? (1)

Higaran (835598) | more than 4 years ago | (#30436890)

I'm sorry, but the guy was a cop, he should know better. It says he was a swat member but still, police know how easily that stuff can be accessed. He shouldn't have put anything stupid like that on his work device.

Absurd (0)

Anonymous Coward | more than 4 years ago | (#30436928)

Hey, I hate cops as much as the next guy but come on they are people too! They were expressly told they can put personal stuff on there.

Re:Absurd (1)

Shakrai (717556) | more than 4 years ago | (#30437102)

They were expressly told they can put personal stuff on there.

My employer has no specific policy against personal internet usage but that doesn't mean that I'm going to use my company workstation to send sexually explicit "fuck me!" messages to my girlfriend.

Re:Absurd (2, Funny)

Anonymous Coward | more than 4 years ago | (#30437174)

My employer has no specific policy against personal internet usage but that doesn't mean that I'm going to use my company workstation to send sexually explicit "fuck me!" messages to my girlfriend.

You just did.
See you after work, hon. ;)

Re:Absurd (0)

Anonymous Coward | more than 4 years ago | (#30437832)

So? I fail to see where that makes it okay for them to search your phone.

Re:Absurd (2, Insightful)

Shakrai (717556) | more than 4 years ago | (#30437846)

It's their property. That's what makes it ok for them to search it.

If I lend you my car are you going to deny me the right to search it and see what you are doing with it?

Re:Absurd (1)

similar_name (1164087) | more than 4 years ago | (#30438552)

It's their property. That's what makes it ok for them to search it. If I lend you my car are you going to deny me the right to search it and see what you are doing with it?

Maybe if you say "Here's my car, I'm not going to search it or ask you what you're doing with it."
Why the police station didn't think to make a policy that allowed them full access to the taxpayer purchased equipment is an interesting question in and of itself.

Re:Absurd (1)

armareum (925270) | more than 4 years ago | (#30438760)

read it again. it says informal policy.

Re:Absurd (1)

similar_name (1164087) | more than 4 years ago | (#30439036)

Which is why I find it interesting that the police department had no formal policy to the contrary.

Re:Absurd (1)

TapeCutter (624760) | more than 4 years ago | (#30438886)

Thank FSM. Someone put it into a car analogy.

Re:Oh wait, what? This again? (1)

Monkeedude1212 (1560403) | more than 4 years ago | (#30436954)

Except that the work device was expected to be used for personal use as well if you pay your bills.

It'd be like your company buying you and IPhone and paying for a Dataplan. You are perfectly allowed to to put unlimitted Texts, your fav 5, or whatever other plan you want on it so long as you cover the extra Cost.

What seperates this here is that the police force said if you pay the bills you won't get inspected.

He paid the bills. He got inspected.

Re:Oh wait, what? This again? (2, Insightful)

Xaositecte (897197) | more than 4 years ago | (#30436998)

Again, formal written policy trumps informal policy.

The lieutennant in question didn't have the authority to change formal policy, so his personal assurance should mean jack shit in a legal battle.

Re:Oh wait, what? This again? (1)

Jane Q. Public (1010737) | more than 4 years ago | (#30437080)

You are confusing formal policy with written policy.

A contract is a contract, regardless of whether it is written down. The writing is nothing more than evidence of a contract, it is not the contract itself.

We don't know whether the lieutenant's policy was official or "formal" or not.

Re:Oh wait, what? This again? (-1, Troll)

Xaositecte (897197) | more than 4 years ago | (#30437130)

Read the Article

Read the other responses in this thread

Hell, Read the goddamn summary.

Idiot.

Re:Oh wait, what? This again? (5, Insightful)

Xuranova (160813) | more than 4 years ago | (#30437164)

I think it would if the defense got the right lawyer.

Example:
Your direct supervisor tells you, you can go home early, no need for you today.
You leave.
For one reason or another, HIS supervisor felt you shouldn't have left and fires you.
I'm pretty sure with the right lawyer one can argue, you had a reasonable expectation that it was okay for you to leave and not suffer the consequences, despite what the policy and your supe's supe said.

This isn't really any different, if your superior says its okay for you to do something, and someone over his head comes down on you for it, you have a defense.

Re:Oh wait, what? This again? (2, Interesting)

Xaositecte (897197) | more than 4 years ago | (#30437238)

I think You're the first person in this thread who's made a good analogy, and a logical arguement.

I'd mod you up if I weren't already involved in the discussion elsewhere.

I still think the search should hold up as "not a violation of fourth amendment rights" - but it's a good arguement.

Re:Oh wait, what? This again? (1)

ffflala (793437) | more than 4 years ago | (#30438872)

Depends. I don't believe that would hold up for a second under an at-will employment scheme. Under those you can be fired for no reason at all, or any legal reason. That would include your direct supe screwing up and his supe taking it out on you.

The only few reasons you can't be fired under work for hire are prohibited are things like racial, sexual, religious bias, and a few other limited categories.

Re:Oh wait, what? This again? (-1, Troll)

Anonymous Coward | more than 4 years ago | (#30437040)

Yes, but he works for *cops*. Cops *lie*. They lie extra when anything involving the Constitution is involved. He should know this...

Re:Oh wait, what? This again? (1)

pixelpusher220 (529617) | more than 4 years ago | (#30437054)

well to be more accurate "Under an informal policy adopted by a police lieutenant, those who paid the excess charges themselves would not have their messages inspected." emphasis mine.

So it wasn't in writing. i.e. it didn't exist. Not fun, not cool on the part of the Lt. but they have zip to stand on IMO. I'm amazed SCOTUS upheld this. All it would take is a promotion or retirement and that Lt. is no longer there to uphold the 'informal policy'.

Re:Oh wait, what? This again? (0)

Anonymous Coward | more than 4 years ago | (#30438142)

Article doesn't say it wasn't in writing. It's pretty vague about the form of the "informal policy."

Re:Oh wait, what? This again? (1)

PRMan (959735) | more than 4 years ago | (#30438826)

It's California. IANAL but standard practice trumps ANY policy or writing in a workplace.

If he can get affidavits of officers stating that they all understood the policy the same way, the written policy has been rendered irrelevant.

Re:Oh wait, what? This again? (1)

immortalpob (847008) | more than 4 years ago | (#30438898)

SCOTUS has not upheld anything, they have agreed to hear the case. We shall see what they say when they say it.

Re:Oh wait, what? This again? (1)

fluffy99 (870997) | more than 4 years ago | (#30439582)

It might have been in writing, just not from someone with the authority to set formal policy. I can easily see an email saying if you go over the limit, expect to pay the overage charge. Otherwise, be prepared to have the messages reviewed to make sure its truly business related.

How many offices have an "unwritten" policy that you can use your deskphone for personal during lunch, maybe even going so far as to say use a calling card for personal long dist? How does that change your expectation of privacy? Can they fire you for using the phone during lunch and talking dirty to your girlfriend (assumes you're not creating a hostile workplace)?

Besides, wouldn't the issue be the person _sending_ these questionable text pages?

Re:Oh wait, what? This again? (2, Informative)

nedlohs (1335013) | more than 4 years ago | (#30437134)

He's a cop, he must know rule number 2:

2. Never believe a word a cop says.

Almost as important as rule number 1:

1. Never talk to the police.

Re:Oh wait, what? This again? (3, Funny)

MadnessASAP (1052274) | more than 4 years ago | (#30437296)

Anybody who knew of rule 1 wouldn't have been able to tell him then would they?

Re:Oh wait, what? This again? (1)

nedlohs (1335013) | more than 4 years ago | (#30437978)

I had foolishly assumed he wasn't born a cop.

Re:Oh wait, what? This again? (1)

MadnessASAP (1052274) | more than 4 years ago | (#30438136)

Well aren't you silly, don't you know that every so often an angel descends from heaven and grants a baby the power to be simultaneously an asshole and a "hero" of the community AND grant them a position of power?

Re:Oh wait, what? This again? (1)

AnotherUsername (966110) | more than 4 years ago | (#30438696)

How did this get modded up? This is a troll, and people are modding it Informative? Are you kidding me?

Re:Oh wait, what? This again? (2, Interesting)

TapeCutter (624760) | more than 4 years ago | (#30438972)

Cops are outside of the average slashdoters monkeysphere [cracked.com] .

Re:Oh wait, what? This again? (1)

shentino (1139071) | more than 4 years ago | (#30437212)

If it was really a work device then what business does the company have sticking them with the bill?

Also, there was an exchange of consideration "you pay the overage and we won't snoop" so privacy in this case seems to be guaranteed simply by contract.

Re:Oh wait, what? This again? (1)

selven (1556643) | more than 4 years ago | (#30437378)

So the fact that you know that your data can easily be accessed gives people the right to circumvent the Fourth Amendment against you?

Re:Oh wait, what? This again? (2, Informative)

greymond (539980) | more than 4 years ago | (#30436916)

From the article...

The Ontario Police Department had a formal policy reserving the right to monitor “network activity including e-mail and Internet use,” allowing “light personal communications” by employees but cautioning that they “should have no expectation of privacy.” The policy did not, however, directly address text messages.

Re:Oh wait, what? This again? (1)

omnichad (1198475) | more than 4 years ago | (#30436942)

Also from the article...
 
Members of the department’s SWAT team were given pagers and told they were responsible for charges in excess of 25,000 characters a month. Under an informal policy adopted by a police lieutenant, those who paid the excess charges themselves would not have their messages inspected.

Re:Oh wait, what? This again? (2, Insightful)

Aladrin (926209) | more than 4 years ago | (#30437010)

"Under an informal policy adopted by a police lieutenant,"

A policy that isn't written down can't be relied upon. It's subject to change at a moment's notice.

Re:Oh wait, what? This again? (1)

BitterOak (537666) | more than 4 years ago | (#30437074)

Under an informal policy adopted by a police lieutenant, those who paid the excess charges themselves would not have their messages inspected.

And was it the police lieutenant who read the messages or someone higher up? If department policy says that messages can be read, I don't think a sole lieutenant has the authority to change that policy, and he certainly can't speak for his bosses.

Re:Oh wait, what? This again? (1)

Xaositecte (897197) | more than 4 years ago | (#30436964)

The Lieutennant had a personnel policy of not reading text messages.

This doesn't affect the official policy of the entire organization which is no expectation of privacy.

Furthermore, the vast majority of usage was personal in nature, not official.

RTFA.

Re:Oh wait, what? This again? (1)

BobMcD (601576) | more than 4 years ago | (#30437064)

This only matters if the official policy was applied evenly and there was an expectation of enforcement.

IANAL, but RTFLaw

Re:Oh wait, what? This again? (1)

sunderland56 (621843) | more than 4 years ago | (#30437122)

were told that the messages wouldn't be read

Verbally? Or in writing?

Interesting that there is no mention of the police union stepping in here - the union stewards are usually the first on the scene when a cop-versus-management dispute arises.

Re:Oh wait, what? This again? (1)

John Hasler (414242) | more than 4 years ago | (#30438014)

> Verbally? Or in writing?

Verbal agreements are binding.

Re:Oh wait, what? This again? (1)

Starfleet Command (936772) | more than 4 years ago | (#30439114)

Not all states have active or powerful unions. Here in VA, the attitude is union smunion...they does not have any power, at best, they might be able to fund an atty.

Re:Oh wait, what? This again? (1)

NoYob (1630681) | more than 4 years ago | (#30436988)

An organization has the right to inspect how its resources are being used? Madness!

Yeah. Unfortunately, I was sued when I wanted to make sure the ladies restroom was being used properly. I did it discretely with a peep hole and I didn't do it personally (I'm not a perv) - I had a video cam taking movies and I put them on the web for others to check for me so I wouldn't be accused of being a peeping Tom - all for a small fee to pay for bandwidth, of course.

God! You just can't please some people!

Re:Oh wait, what? This again? (0)

Anonymous Coward | more than 4 years ago | (#30437168)

You're really trying to put a mis-informative spin on this. The organization clearly indicated that you could use the pagers for personal use, and if you used them heavily for personal use, you would pay out of your own pocket for the privilege.

So now that he's paying for the service out of his own pocket, and using it for personal use (never mind what kind of personal use), the organization changes it's policy. It decides that simply owning the hardware in question supersedes all prior agreement and they can change their policy retroactively and inspect that which they agreed to not care about.

If you're for the police department on this one, then basically you are for an organization not being bound to its word on agreements of how resources are to be used, but employees being bound to their word on how those same resources are to be used. Such a position is clearly an invitation for an organization to abuse any resource bound agreement. Considering that the police department could have avoided this entire issue by either denying personal use, by outlining what kinds of personal use were acceptable, by changing their agreement non-retroactively, or by not changing their agreement, it's hard to side with them (even if they bought the pager).

Re:Oh wait, what? This again? (2, Informative)

Xaositecte (897197) | more than 4 years ago | (#30437362)

1. The official policy of the organization, that there was no expectation of privacy, has never been in question, and has never changed.

2. A middle manager (The Lieutenant) made an unofficial policy that the text messages wouldn't be inspected.

3. The inspection was not made simply because it was an organizational resource, it was made because the officer in sergeant in question was overusing his phone, and they wanted to find out why.

The policy department as a whole never made any statements or policy that this was acceptable. The organization is not going back on it's word. The lieutenant in question is kind of an asshole for this, but he's not in the wrong legally.

Re:Oh wait, what? This again? (2, Interesting)

Trepidity (597) | more than 4 years ago | (#30437264)

A police department asking a telecom company to turn over transcripts of messages is a somewhat different position, though. Does a telecom company really treat those requests exactly as any other customer asking for transcripts of messages? Or does it treat it like a police request for transcripts?

Re:Oh wait, what? This again? (0)

Anonymous Coward | more than 4 years ago | (#30437632)

An organization has the right to inspect how its resources are being used? Madness!

But isn't this the same government that doesn't need a warrant to look at email & text messages?

Why should a SWAT officer have more rights than other citizens? Oh, right, they have guns.

Remind me to renew my gun permit.

Re:Oh wait, what? This again? (1)

Montezumaa (1674080) | more than 4 years ago | (#30439240)

Did you know that many government agencies, as well as private businesses, charge employees for the "free" business phones and devices they use? Under the tax law in the United States, employees are to be taxed a certain amount of the bill for their business lines. When I was in law enforcement, we were charged taxes on our Nextel lines and we had to pay for any personal use. Short of us trying to engage in criminal activities or attempting to choke someone with the phone itself, we were never bothered with how we used the phones.

My girlfriend, who is now my wife, sent me numerous sexually explicit text messages. Other than one incident, when the, then captain of our unit, decided to have a little fun and post a conversation of ours in a break room, nothing was ever said about how we used the phones. We had to pay for all incidental use, outside of normal police function, which meant that we were protected under the fourth amendment like a private citizen. You may disagree, but the law does not really care what you think.

Some citizens tried to argue that the government owned the phones, but they were dead wrong. Along with paying non-job related use, the officers had to pay for the device. It was only if the device was damage in the course of duty that the government would pay for the device. I know that many people dilude themselves into thinking that law enforcement officers are robots that only behave a certain way and never have fun. In reality, those in law enforcement enjoy sex, alcohol, and fun(wait, those are essentially the same thing).

Sorry kids, but cops, just like your parents, do have sex and enjoy it.

Policy Changes (0)

Anonymous Coward | more than 4 years ago | (#30436812)

What the bloody hell is the point of stating a policy if you don't have to stick to it? This happens all the time in all sorts of organizations.

If you have a policy, you should be held to it. If you give reasonable notice of changes, that's acceptable. It is completely unacceptable to make up rules as you go along.

Paid (4, Insightful)

Renraku (518261) | more than 4 years ago | (#30436814)

A work phone, paid for by the workplace, should be allowed to be inspected by the workplace. Just like email. Just like web traffic. Any abuse of this system, however, should be punished harshly and swiftly. If you want to sext each other, get your own damn phones. I'm sure evidence logs don't need a whole lot of, "Lol hang on let me beat this black guy for being black" mixed with "Done beating him here's a picture of my dick" when at trials.

Re:Paid (1)

Monkeedude1212 (1560403) | more than 4 years ago | (#30436918)

Except that they said they wouldn't inspect the pagers if he paid the excess bills. And he paid the excess bills.

So while I support them having the right, they went back on their word.

Re:Paid (0)

Anonymous Coward | more than 4 years ago | (#30436986)

Yes... it's too bad that cops can lie during the course of an investigation...

Re:Paid (5, Interesting)

Anonymous Coward | more than 4 years ago | (#30437226)

to go OT...

There was a case a few years ago where the cops lied to someone under interrogation to get them to confess, by telling them that $actual_real_named_person has identified them as the culprit (which they hadn't done). She wound up dead 24 hours later. Apparently, she didn't have to be offered protection because she hadn't actually provided the police with the evidence.

Re:Paid (1)

Darth Turbogeek (142348) | more than 4 years ago | (#30437014)

If there was no formal written policy declaring no lookie - it's claimed a person had a personal informal policy and this is not the department's policy - then SOL, no matter what the Lt. may have said.

I would further say that the fact the Lt went looking suggests there was something the employee was doing that wasnt kosher and there is more to this story. I am betting the person who got looked at was not doing their job.

The fact the SCOTUS took this up is a concern for businesses and sys admins. I would have thought it obvious there's no freedom of speech issues here.

Re:Paid (1, Interesting)

Anonymous Coward | more than 4 years ago | (#30437260)

If there was no formal written policy declaring no lookie - it's claimed a person had a personal informal policy and this is not the department's policy - then SOL, no matter what the Lt. may have said.

so much for justice, eh? It is a reasonable assumption that what a superior says to you is the rule, especially in a rank and file organization like a police dept. the court acted in defense of those who were duped by the Lt's 'informalness.' Being told I can do something only to have my ass fucked for it retroactively by someone else is wrong no matter how you put it.

The fact the SCOTUS took this up is a concern for businesses and sys admins. I would have thought it obvious there's no freedom of speech issues here.

Only for those who like to change the rules whenever it suits their whims. In this case, using legal whimsy to go after someone because of his private sexual affairs borders on persecution. Keep the morality brigades in the history books along with the puritans please...

Re:Paid (1, Informative)

Anonymous Coward | more than 4 years ago | (#30438064)

A work phone, paid for by the workplace, should be allowed to be inspected by the workplace. Just like email. Just like web traffic.

In germany you have to be careful as company if you do so. If you (even implicitely) allow private use of your email system you become a "content provider" just like an ISP and are *not allowed* to look at your employees emails, in case they contain private material. Really great if you get fired at such a company and can hinder them to use the mails in your account :)

That's why most companys (even the one I work for) have strict "no personal email, internet or files" in their contracts...

There's the kicker: (3, Insightful)

Monkeedude1212 (1560403) | more than 4 years ago | (#30436856)

From the Summary:

The lieutenant eventually changed his mind

And that's all thats required to know they were in the wrong. If they were going to change their mind, they need to inform their employees that the change is occuring, and that his privacy will then be at stake. They should only be able to check pager transcriptions after that day.

You can't say one thing and then do another, even if it's to stop sexually implicit messages. Deceipt cannot be tolerated at any level of government.

Re:There's the kicker: (1)

BitterOak (537666) | more than 4 years ago | (#30437106)

The lieutenant eventually changed his mind

And that's all thats required to know they were in the wrong. If they were going to change their mind, they need to inform their employees that the change is occuring, and that his privacy will then be at stake. They should only be able to check pager transcriptions after that day.

True, but only if said lieutenant had the authority to override department policy on the matter in the first place.

Re:There's the kicker: (1)

TapeCutter (624760) | more than 4 years ago | (#30439120)

# - True, but only if said lieutenant had the authority to override department policy on the matter in the first place.

He had authority over the sergeant, it's no different to a mid-level boss telling his underlings they can knock of half an hour earlier today because (say) the network is down, and then the upper level boss sacking the lot of them for goofing off.

Re:There's the kicker: (1)

Eevee (535658) | more than 4 years ago | (#30437156)

Who is "they"? The Police department? They didn't change their mind, and had always explicitly stated that messages could be monitored. They The lieutenant? He didn't have the authority to make changes in policy.

Re:There's the kicker: (1)

Monkeedude1212 (1560403) | more than 4 years ago | (#30437234)

He's the one enforcing the policy though. Had it been NOT the lieutenant doing the inspection I think I'd be a little more lenient in my standing, but its basically 1 Man deciding to change his mind. It's not 1 man saying one thing, policy saying another, and another guy doing the inspection.

No, this is a man going back on his word. Whether it's within his rights to do change policy or not it doesn't matter, this guy was a jerk, and the courts are upholding the spirit of the law.

Re:There's the kicker: (2, Informative)

John Hasler (414242) | more than 4 years ago | (#30438056)

This case is going to hinge on a lot of details that we don't have.

I will add (0)

Anonymous Coward | more than 4 years ago | (#30437684)

that it doesn't make sense to believe such an obviously-likely-to-change promise and do risky stuff. Even though it was completely wrong (and in my opinion actionable) that they changed their policy and then acted upon that change without warning anyone....it is *also* stupid to have not seen this coming.

I prefer to preemptively protect myself from abuse even when the abusers promise not to abuse me.

Re:There's the kicker: (1)

TubeSteak (669689) | more than 4 years ago | (#30438114)

The lieutenant eventually changed his mind

And that's all thats required to know they were in the wrong

My WTF moment from the decision: the 9th Circuit Court declared that since FOIA requests aren't common,
the fact that the texts were public records didn't remove the users' expectation of privacy.

Re:There's the kicker: (1)

chazzf (188092) | more than 4 years ago | (#30438180)

The summary, however, oversimplifies things. In the opinion, the Court notes that the sergeant signed an acceptable use policy in 2000, and was informed at a general meeting in 2002 that pagers (and their messages) were considered email as far as the policy was concerned. The city had a policy/practice (not entirely clear how official) that employees who went over the 25,000 character limit would pay the overage. The lieutenant who acted as the bill collector apparently told members of the force that if they paid the overages there would be no questions asked. In 2003, the chief asked for an evaluation of whether these repeated overages were work-related, apparently (and a jury agreed) to determine whether the 25,000 character limit was still reasonable or whether it needed to be increased. The primary point of contention, I think, is over whether the provider violated the Stored Communications Act by turning over the transcripts to the city in the first place. There's an interesting write-up over at Volokh [volokh.com] from Orin Kerr, whose work on the SCA is cited in the Court's opinion.

Seriously, what did you expect to find... (3, Insightful)

Fluffeh (1273756) | more than 4 years ago | (#30436900)

Browsers with "Stealth" (porn) browsing features, schoolkids sending naked pictures of themselves via cellphone, laptops loaded with porn, and you really expect company pagers not to be used to shmooze with others?

Re:Seriously, what did you expect to find... (2, Insightful)

Hurricane78 (562437) | more than 4 years ago | (#30437746)

Well, it’s all about forbidding the “lower class” to reproduce.

When chatting about sex is forbidden, but chatting about who you just shot is OK, you know that something is fucked up beyond all recognition.

Partial private use (0)

GravityStar (1209738) | more than 4 years ago | (#30436904)

Seems clear to me that the SWAT team expected the pagers to used both for business reasons and for private reasons. Otherwise they should have reimbursed all use of the pager, regardless of amount of characters used, *AND* have had a policy of "no private use allowed".

The percentage of private vs work messages doesn't matter; because even an average of 1 work message a month could completely justify the cost of having the pager.

In any case, the sexual nature of the content shouldn't be relevant. It's private use, doesn't matter if you're sending/recieving "walk the dog" messages vs "fuck me like a dog" messages.

Re:Partial private use (1)

GravityStar (1209738) | more than 4 years ago | (#30436996)

Ah. I RTFA'd. The good sergeant sued the police department, not the other way around like I thought. Allow me to repack my righteous indignation for future use.

Any different than E-Mail? (2, Interesting)

Virtucon (127420) | more than 4 years ago | (#30436946)

How is this any different than employers reading your e-mail? There's already statements from the Supreme Court that "While police, and even administrative enforcement personnel, conduct searches for the primary purpose of obtaining evidence for use in criminal or other enforcement proceedings, employers most frequently need to enter the offices and desks of their employees for legitimate work-related reasons wholly unrelated to illegal conduct."

It sounds like in this case the employer had a policy regarding 25000 characters per month and they were enforcing a policy. Arch(Pagenet) didn't have much in the way of message security anyway so this seems that
the employer could get access quite easily to the messages, especially if they were the account holder.

Since Text Messages and E-Mails are handled by third parties, wouldn't this also apply to the recent ruling that you don't have a right to privacy?

 

Re:Any different than E-Mail? (1)

davmoo (63521) | more than 4 years ago | (#30437286)

What makes this one "different" is that the organization who owns the equipment is a government entity, not a private business.

If this were a case involving John's Private Company Inc, there would be no case here...everyone up to and including SCOTUS has ruled "he who owns the equipment or account makes the rules and can look at their use and content freely".

But to my knowledge they've never before ruled on how/if that applies to divisions of government.

Re:Any different than E-Mail? (1)

Virtucon (127420) | more than 4 years ago | (#30439008)

Then my argument would be that since it wasn't involving a criminal investigation, why the double standard? I think people have a right to privacy but it shows bad decision making to do it on company time using company equipment. Yes the guy may have paid for the excess usage but still there still needs to be some self control.

Wait, I have a son that uses over 3000 text messages a month. Most of which go to his girlfriend. Nevermind...

Re:Any different than E-Mail? (1)

Fallen Kell (165468) | more than 4 years ago | (#30437438)

How is this any different than employers reading your e-mail?

Because employers are reading email on work computer paid for entirely by work. In this case, they were reading messages on a pager where the user was paying for any and all costs over the 25k characters a month. In this case, since the business is not footing the bill themselves, they do should not have a right to monitor how that device is entirely being used (aside from the fact that it may have exceeded the stated limit of 25k characters that they were going to pay to cover).

As for your "

Since Text Messages and E-Mails are handled by third parties, wouldn't this also apply to the recent ruling that you don't have a right to privacy?

", I would argue the same about home phone conversations, and even the US Mail, since in the case of the phone, the voice data is being sent over data lines that are possibly leased by one company, processed at a teleco center, most likely leased from yet another third party, on equipment owned or leased to the phone company the user has a contract with, and sent over lines owned or leased possibly by yet another third party, to the destination teleco center possibly owned or leased to yet another third party which on gear owned or leased to possibly yet another third party who is under contract by the other person/business which the call is being placed to... As for the US Mail, it is a "third party", in the by definition since it is not the sender or receiver of the document/letter/package. But, we clearly have stated that those situations have the expected right to privacy.

Re:Any different than E-Mail? (1)

Fallen Kell (165468) | more than 4 years ago | (#30437498)

I would also note that this is much more like a phone than an email system, since the underlying technology is very much like a cell phone than to a PC sending/receiving email.

Re:Any different than E-Mail? (1)

Virtucon (127420) | more than 4 years ago | (#30438970)

Well, I agree with most of that however pager systems are very much store and forward systems like E-Mail. Messages come in, are stored and forwarded to other systems and ultimately delivered to the pager. Unlike E-Mail there isn't an associated "durability" of the data once delivery is complete. But are we arguing that the technology denotes the privacy? I would hope not. Yes, I agree that if it's your "personal" communications on "your device" then there should be an assumption of privacy.

I'll cite the Kobe Bryant incident where Text Messages from his accuser were retrieved and used by the prosecution to build a failed case. Did she have the right to privacy there? No, it was a criminal case but there were messages stored for law enforcement purposes. We can thank certain paranoid legislation for that.

http://www.msnbc.msn.com/id/5151987

I guess this all comes down to the fact that if you wouldn't say it to a member of the clergy or a cop, don't send it in a Text Message.

It sounds that the Supreme Court should take this up and clarify the issue but given the conservative nature of the court I sincerely doubt that our privacy rights will be upheld and another mantra of "well, you don't have an expectation of privacy.. blah..." Since I work in DC, I'd love to take some time off work and go see the arguments.

Re:Any different than E-Mail? (1)

John Hasler (414242) | more than 4 years ago | (#30438106)

> Since Text Messages and E-Mails are handled by third parties, wouldn't this
> also apply to the recent ruling that you don't have a right to privacy?

Citation.

Re:Any different than E-Mail? (1)

TubeSteak (669689) | more than 4 years ago | (#30438278)

How is this any different than employers reading your e-mail?

Read the decision.
The contents of communications made using an RCS can be disclosed to the owner of the equipment (the city).
The contents of communications made using an ECS can only be disclosed with the consent of the sender or intended recipient.

The 9th Circuit Court decided that a two-way pager is an Electronic (ECS), and not Remote(RCS), Computing Service.
This makes all the difference in the world under California State law and the Constitution.

Ontop of that, the lieutenant's informal (yet consistently applied) policy was that if officers paid any excess charges, he wouldn't look at their texts. By itself, the 9th Circuit decided this created a reasonable right to privacy.

I'm not sure if they'd extend that logic to e-mail though.

Re:Any different than E-Mail? (1)

Virtucon (127420) | more than 4 years ago | (#30439090)

Humm, so my old analog phone lines used to go to a switchboard where Ernestine would switch me over to somebody's line. That was an Electrical Communication Service. With the advent of switches Ernestine was rendered obsolete and became a comedienne.

Now, your POTS line goes to a LEC and gets converted to a PSTN. The PSTN runs on remote computers where packets are stored and forwarded. I fear you're right but the lines are extremely thin between the distinctions. Is the distinction about the entire contents? a portion of it? If I communicate with another individual, regardless of method, do I have a right to privacy? Where do I not have the right? Outside of my home? I'd personally not leave this up to the courts to decide either, but then again we have a legislature that can't pass anything except more spending bills.

 

Wait a minute... (2)

Gordonjcp (186804) | more than 4 years ago | (#30437042)

They use pagers? And, more to the point, they *pay* to use pagers? They should have been using SMS on their mobile phones. Personal phones, rather than employer-supplied ones. That way it would be free from employer snooping, and free to use.

Re:Wait a minute... (1)

rolfwind (528248) | more than 4 years ago | (#30437904)

Idk if pagers are more reliable or what not, but this single web page we are on here is way more than 25k characters. Just a thought...

Re:Wait a minute... (2, Insightful)

westlake (615356) | more than 4 years ago | (#30437924)

Personal phones, rather than employer-supplied ones. That way it would be free from employer snooping, and free to use

and the ever-paranoid geek won't see any problems at all in allowing undocumented use of private phones and messaging services by police officers on duty?

Re:Wait a minute... (3, Informative)

ThreeGigs (239452) | more than 4 years ago | (#30438302)

The year is 2002, not 2009. SMS was not very prevalent at the time, and inter-provider SMS was still occasionally glitchy. That was the time of dedicated alphanumeric pagers waning in popularity while the 'cool kids who wanted to be like the drug dealers' were discovering SMS on their phones.

Police take oath of celebacy??? (4, Insightful)

syousef (465911) | more than 4 years ago | (#30437050)

Gimme a break. I didn't realise the police were clergy! What law was this guy breaking by sending sexually explicit messages? As for the issue of using police equipment for personal messages, if this was permitted at the time, again what's the problem? If he was breaking a law why isn't this what we're hearing about rather than the fact that he liked to talk dirty?

Re:Police take oath of celebacy??? (1)

UnknowingFool (672806) | more than 4 years ago | (#30438080)

I don't this is a case of breaking laws. The issue is larger than that especially when the Supreme Court takes a case. At issue is what privacy rights employees can expect when they use communications systems provided by their employer. The Supreme may narrowly rule only for government employees though. Most employers have policies for older technologies like telephones and mail but not have defined their policies on the new communication systems like texting.

Re:Police take oath of celebacy??? (1)

TubeSteak (669689) | more than 4 years ago | (#30438378)

As for the issue of using police equipment for personal messages, if this was permitted at the time, again what's the problem?

I didn't see anywhere in the decision that said the officers' behavior was permitted.
As a matter of fact, both sides agreed that the AUP prohibited such usage.
The Court decided that the officers had a right to privacy and the searches were unreasonable, that's it.

If the Lieutenant had stuck to the policies as they were written, there would have been no presumed right to privacy and this would never have ended up in court.

nature is so hot... (0, Offtopic)

gandhi_2 (1108023) | more than 4 years ago | (#30437194)

...sexually explicit in nature.

Mosquitoes can be a problem.

Does the sexting really matter? (3, Insightful)

BobMcD (601576) | more than 4 years ago | (#30437220)

According to the trial judge, many of the messages 'were, to say the least, sexually explicit in nature.'

...and, what? Is there a policy against it? Was the other party a co-worker? Why is this remotely relevant?

The policy states:

The use of inappropriate, derogatory, obscene, suggestive, defamatory, or harassing language in the e-mail system will not be tolerated.

So if I were to exchange sexually explicit messages with my wife, for example, how does the policy apply? It would then be appropriate, favorable, natural, explicit, complimentary, and welcome. What happens now?

“[u]sers should have no expectation of privacy or confidentiality when using these resources.”

And likewise, people peeking in my bedroom window should expect to see my hairy butt from time to time. Don't want to see, don't look. Look, you get what you asked for...

The closest thing I can find is this:

Chief Scharf referred the matter to internal affairs “to determine if someone was wasting . . . City time not doing work when they should be.”

Hey, Chief, they were. Investigation over. Chances are, you were, too, unless you somehow work your entire shift without periods of non-work time. That includes your bathroom time, sir. The salient question should be, were any dollars actually wasted? Was there any SWAT not getting done because of the excessive pager use?

why is this even in question? (4, Interesting)

Eil (82413) | more than 4 years ago | (#30437302)

I heard this on NPR this morning and the fact that they were using the phrase "grey area" astounded me.

Look, it's simple: if your employer owns a device, and allows you to use it, you are not to ever use it for personal reasons, nor should you ever expect even the slightest amount of privacy for communications using the device. Even (and probably especially) if they give you permission for personal use. That goes for cell phones, pagers, computers, slide rules, everything. That means you do not log into personal Facebook, Google, or Hotmail at work. You do not use the company phone to call home. If you do any of these, you've 1) probably violated the terms of your employment and 2) have given the company/government permission to peer into all personal communications made with your employer's equipment.

You have explicit rights (in most cases) to privacy and use of the property that you actually own. That's it, the line is drawn there. I can't believe there is any controversy over this.

Re:why is this even in question? (1, Insightful)

maxume (22995) | more than 4 years ago | (#30437624)

How do you reconcile your fascist attitude with the fact that a case about this question is going before the Supreme Court?

Re:why is this even in question? (1)

Reason58 (775044) | more than 4 years ago | (#30437660)

Look, it's simple: if your employer owns a device, and allows you to use it, you are not to ever use it for personal reasons, nor should you ever expect even the slightest amount of privacy for communications using the device. [...] That goes for cell phones, pagers, computers, slide rules, everything. That means you do not log into personal Facebook, Google, or Hotmail at work.

But I can't make it through the day without checking out the latest slashdot story on my company-issued slide rule!

Re:why is this even in question? (0)

Anonymous Coward | more than 4 years ago | (#30439168)

At my last workplace any email addressed to an external recipient was subject to possible sampling each month if the volume of externally addressed email for the group exceeded a certain threshold. Also, if the volume of externally addressed email fell below the threshold then all such email was included in the report for the manager to review.

Re:why is this even in question? (0)

Anonymous Coward | more than 4 years ago | (#30438026)

I would hate to work with you...

Re:why is this even in question? (2, Insightful)

rahvin112 (446269) | more than 4 years ago | (#30438152)

Unless of course your employer told you that you could use it for personal use if you covered those charges. Then when that employer turns around and changes their mind without telling the employees and then takes action against said employee's for doing exactly what they were told they could do.

It's called lieing, not changing your mind. The supervisor lied to the employees, either that or he got angry at the employee in question and decided to change the policy for this one employee so he could find a reason to retaliate against him. Either way without formal notice that the policy had changed the employee is abrogated of any responsibility for personal use IMO and content is irrelevant unless it was creating a hostile work environment and he had the complaint to prove it. In that case he owed the employee a warning about the change in policy before taking action. The supervisor should be fired IMO.

Re:why is this even in question? (2, Interesting)

John Whitley (6067) | more than 4 years ago | (#30438192)

You have explicit rights (in most cases) to privacy and use of the property that you actually own. That's it, the line is drawn there. I can't believe there is any controversy over this.

Of course there's controversy! In case you haven't noticed, a vast majority of our "personal" data has wandered out onto networks and servers that none of us control. This has been a gradual process going on for years, but the very attributes of modern networked computer systems make the real-world impact of these changes much greater now. This has radically changed the landscape under which the 4th amendment (and a lot of other law) was originally conceived. I'd say that review of the applicability of constitutional protections in modern contexts could be viewed as one of the most important roles of the SCOTUS.

Re:why is this even in question? (1)

jschottm (317343) | more than 4 years ago | (#30438324)

the fact that they were using the phrase "grey area" astounded me.

The reason it's a grey area is that technology has advanced far faster than the laws that regulate it.

Look, it's simple: if your employer owns a device, and allows you to use it, you are not to ever use it for personal reasons, nor should you ever expect even the slightest amount of privacy for communications using the device. Even (and probably especially) if they give you permission for personal use. That goes for cell phones, pagers, computers, slide rules, everything. That means you do not log into personal Facebook, Google, or Hotmail at work. You do not use the company phone to call home. If you do any of these, you've 1) probably violated the terms of your employment and 2) have given the company/government permission to peer into all personal communications made with your employer's equipment.

Do you have any legal reason for these claims or are you just pontificating? In the case of the former, you're absolutely wrong (my terms of employment specify reasonable personal use of the telephone and computers for everyone from the janitor to the president). If you're just spouting off, the good news for the rest of us is that most people don't like to have an obnoxious absolutist relationship with their employer and so laws are unlikely to ever line up with your views. Just guessing, you don't have kids, do you?

You have explicit rights (in most cases) to privacy and use of the property that you actually own. That's it, the line is drawn there.

A person in jail talking with their lawyer via telephone (whether closed circuit in person or to the lawyer's office) doesn't own the communications device or have property rights to the room they're in yet their conversion is and must be considered protected. As would a private conversation between a husband and wife, even if they happen to have borrowed my car and are driving while conversing.

Re:why is this even in question? (0)

Anonymous Coward | more than 4 years ago | (#30438648)

Look, it's simple: if your employer owns a device, and allows you to use it, you are not to ever use it for personal reasons

I call bullshit. I can't make incidental personal calls on a landline phone on my desk at work? Sure that could be prohibited if my employer chose to have such a policy, but if they wanted to be so unreasonably controlling, I wouldn't work there. So I think you're being a bit of an extremist in your statement -- a policy can only be violated if such a policy exists; but if no such policy exists, then there isn't a violation.

nor should you ever expect even the slightest amount of privacy for communications using the device.

I do agree with you on that one. You want privacy, use your own damn device.

Re:why is this even in question? (1)

ffflala (793437) | more than 4 years ago | (#30438988)

mod parent up

Employer property! (0)

Anonymous Coward | more than 4 years ago | (#30437842)

Ummm...it's employer property! A few times in the past, I've made personal calls on my work cell phone [I did not yet have a cell phone myself], and I understood that my employer had the right to [1] make me pay for it, and [2] ask me what the hell I was doing--they wound up doing neither, since we didn't exceed the monthly minute allocation.

I've thought of an interesting one though:

My employer sends me on travel and gets me a hotel room for a week. I use the hotel's Internet connection to surf porn from my work laptop. At the time, I am NOT logged into the company VPN or using a company aircard. I keep Firefox in porn mode. Or I just bring my own laptop with me and surf porn from that.

I'd side with the employee in this case. Just like a workplace bathroom, when an employee is in their hotel room after a day of work, they're off the clock and have an expectation of privacy.

Because of this: (1)

John Hasler (414242) | more than 4 years ago | (#30437944)

"Under an informal policy adopted by a police lieutenant, those who paid the excess charges themselves would not have their messages inspected."

This case will probably set no clear precedent.

CA cop on stimulus plan (0)

Anonymous Coward | more than 4 years ago | (#30438048)

Too dumb to be a cop! Only 12 percent were work related messages. You might as well txt the media with your resignation and a report on wasting police resources.

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