Category Archives: Workplace Privacy

Your Right to Text Smut on Your Employer’s Pager

The biggest take-away from the Supreme Court’s decision yesterday in City of Ontario v. Quon is that the employee in this case was a moron. As a law-enforcement officer he worked for the government, which gave him a text message pager he used to send sexually explicit messages to his wife and, inevitably, his mistress. And not just a couple messages on Valentine’s Day: in one month the man sent 399 of these private messages, but just 57 work-related messages.

A couple tips for this guy: first of all, sexually-explicit material just does not belong in the workplace. Whether it’s on your computer, by text message, or over the phone, it is at the very least tacky to do this kind of thing in an office on work time. Of course people will occasionally check their personal email or do a little web-surfing on company time – we’re only human, plus there are studies showing that those breaks from work actually improve productivity. But this porn type of stuff is a different story. If you’re in the office or using you’re employer’s equipment (stop snickering), the only appropriate place for sexually explicit matter is in your own head.

Second, how is it that there are people who still don’t get that when you talk dirty in writing, you can easily get caught? Golden-boy Tiger Woods got spanked because of this, not to mention however many legislators it’s been by now. If you have something really urgent to tell someone about their genitalia, you are just going to have to hold it until you see them in person, or else you run a good chance of getting caught. Maybe that risk is what excites these idiots, but if they are willing to risk their job to get their rocks off, it is (again) just tacky to turn around and sue their employers when they do get caught. Dude – you were begging for it, so just suck it up.

In terms of the actual legal significance of this case, it is pretty minor. The reason is that the employee here was a government employee. The Fourth Amendment (that’s the one about searches and seizures, for all you social studies drop-outs) applies only to the government, and the Supreme Court’s decision here was based on whether the employer violated the Fourth Amendment. For the vast majority of Americans who work for the private sector, this opinion does not apply to you. It’s amusing, sure, but not all that relevant to your own life (unless, again, you are one of those people who insists on writing nasty on work-owned equipment, in which case this is one more reminder that you are a git). To be fair, the Court was willing to just assume that “the principles applicable to a government employer’s search of an employee’s physical office apply with at least the same force when the employer intrudes on the employee’s privacy in the electronic sphere,” i.e., private employees get the same protection from their employers as public employees get from theirs. It’s nice that the Court was comfortable enough with this proposition to assume it, but that doesn’t make it stone cold law.

The good news for Court fans is that it wasn’t just the employee providing entertainment value in this case. The Supreme Court had at least one doozy itself, writing that “the judiciary risks error in elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.” Or, in English: “Caution: we don’t understand what text messages are and new technology scares us, so please don’t pay any attention to this opinion. Thank you.”

So if you work for the Supreme Court, it looks like the rules don’t apply to you – text message all the trash you want. You are not getting caught any time soon.