Supreme Court Says Gov't Employee Texts Not Private

e9th writes "The Supreme Court, in a 9-0 ruling, has decided that government employers are entitled to examine all text messages sent with government-provided devices, even if the employee has agreed to pay for any excess message charges out of his own pocket. While the ruling only applies to government employees (at all levels), it may give private sector employees something to think about when using employer-provided devices."

Comments

Simple.

[Mark4ST]

Couldn't an employee just use their own phone to send private texts?

Re:Simple.

[Shakrai]

Now why would you go and do something silly like pay for your own phone service when you can get the taxpayers to pick up the tab instead?

Re:Simple.

[JWSmythe]

    That'd seem to make sense.

    When I was working for companies (oohh, I need a job), I carried my work phone and private phone. Personal calls and texts were on the personal phone. Work calls and texts were on the work phone.

    There was such a huge difference in the texts.

    On the work phone, about 1000 texts/day saying things were up, down, or 999 other bogus status messages. And people wondered why "emergency" texts were missed. Of course they were. After the first 10k status messages, you learn to tune out the beep, or mute 'em.

    On the personal phone, about 3 texts/month saying my friends network had problems. The remainder of the texts were the occasional "are you available", "yes" and "call me", being sent in both directions.

    I don't really want my employer having access to my texts, nor the list of people I talk to. My friends are none of their business. And for the sake of the business, personal calls on the personal phone don't cost the company anything. :) I burnt up enough minutes on the work phone from remote datacenters, sitting in on hour long conference calls to talk about what we were already doing. "Yup, we're here. We're doing it. We'll be done in a few hours if we don't have to sit in on yet another conference call."

   

Re:Simple.

[XxtraLarGe]

Now why would you go and do something silly like pay for your own phone service when you can get the taxpayers to pick up the tab instead?

I know what you're saying, but there may be some good reasons. We have employer issued phones at our workplace with unlimited plans. Making personal calls or sending texts during non-work hours does nothing to change the final bill, so we've been told to use them for our own personal use as well. We're required to have the phones & be "on call." Why would I want to pay for a second phone I don't need?

Re:Simple.

[DDLKermit007]

Which is totally ok. Thing is, people have to treat a cellphone like anything else their employer allows them to use outside of work. If you want to talk dirty to the girl down the hallway, your gona have to find another way to do it. Otherwise you can take the risk.

Re:Simple.

[Shakrai]

We have employer issued phones at our workplace with unlimited plans. Making personal calls or sending texts during non-work hours does nothing to change the final bill, so we've been told to use them for our own personal use as well. We're required to have the phones & be "on call." Why would I want to pay for a second phone I don't need?

Technically your employer is supposed to figure out the percentage of business calls vs personal calls and either bill you the difference or include it on your W-2 as a taxable benefit. Few employers actually bother to do this but it is required by the US tax code.

As for "why" you would want to pay for one, I think the headline answers that question. If you value your privacy then you should be willing to pay to ensure it. If employers can monitor your text messages why not your voice conversations?

Re:Simple.

[Anonymous Coward]

I'm in the exact same boat, but I've never considered giving up my personal phone, and the why seems obvious to me. I pay for a second phone so that my employer has no say in or knowledge of what I do with it. You obviously don't have to have your own phone, but you can't have it both ways. If you use your employers phone, it's their phone, not yours, and they'll do what they want when it comes to monitoring usage. It's not your phone, you have no right to complain about it.

Re:Simple.

[rgviza]

So you can send private texts and calls that your employer isn't allowed to see.
So you can deal drugs with it.
So you can buy drugs with it.
So you can watch porn on it.
So you can make your own porn with it.
So you can sext your girlfriend and MMS pictures of your cock to her.
So you can text your best friend the lurid details of your latest sexual conquest.

I can think of lots of reasons someone would want a second phone not financed by their employer. Most of these reasons involve stuff you don't want your employer to know about or see.

If you are straight edged AND boring, there is no reason. If you like to live dangerously on the fringe or are sexually adventurous, get your own phone. It's a necessity if you regularly have unprotected textual intercourse.

Re:Simple.

[Shakrai]

So you can text your best friend the lurid details of your latest sexual conquest.

If you can fit the lurid details of your latest sexual conquest into 160 characters then it probably wasn't all that impressive ;) Besides, everybody knows that those conversations need to happen over a pint of beer....

Re:Simple.

[Clandestine_Blaze]

EXACTLY! I have a "work phone", which my work pays for and I only make work related calls with it. I have a personal phone, which I pay for, and I use to make personal calls with.

From the article:

"The transcripts showed that Quon had been exchanging sexually explicit messages with his wife, his girlfriend and another SWAT team member."

OUCH.

Re:Simple.

[Anonymous Coward]

Now why would you go and do something silly like pay for your own phone service when you can get the taxpayers to pick up the tab instead?

I know what you're saying, but there may be some good reasons. We have employer issued phones at our workplace with unlimited plans. Making personal calls or sending texts during non-work hours does nothing to change the final bill, so we've been told to use them for our own personal use as well. We're required to have the phones & be "on call." Why would I want to pay for a second phone I don't need?

See, what you are missing is that the original poster just knows all government employees are lazy, time wasting bearucrats intent on sucking up as much taxpayer money while doing as little as possible in return. You are just trying to use facts to point out the stupidity of his assumptions; and trying to take money out of the poor corporations who would profit from all those employees having to spend money on personal cell phones, energy that won't be consumed by having to keep two phones charged, materials and accessories that won't get sold to support spurious phones, etc.

Its almost like you HATE America

Re:Simple.

[Pharmboy]

Why would I want to pay for a second phone I don't need?

Easy to answer: Use it all you want, but assume that your employer will see everything you do. If you want to do something without them knowing, then use your own device. It isn't YOURS. Go ahead and call mom, order that pizza, call a cab, use it for anything that you are fine with it being public, but nothing else.

My experience is that you are better off if you act like everything you do is completely public, be it on any phone, computer, device. Even with the best proxies and encryption, it still *almost* is. If you need to do something that requires no one knowing, then expect that you will have to take extraordinary steps. Simply texting on your company phone is NOT "extraordinary steps".

Re:Simple.

[gandhi_2]

Well...if you were straight edge you could use your personal phone to listen to Minor Threat.

Re:Simple.

[gandhi_2]

True that. I think I'll go borrow an M109A6 Paladin from the national guard armory....i mean, fuck...it's already paid for.

Re:Simple.

[ottothecow]

When are we going to figure out something along the lines of dual-sim phones designed with this sort of use in mind?

I used to have a verizon blackberry from work with a slot for a sim card (since verizon decided using a different standard from the rest of the world was a good idea and now needs to include all the GSM bits to appease business travelers). It would have been much more useful to me if I could put in my personal AT&T sim card and have it just work. Similar to how a BB splits your inboxes, it could have split SMS boxes for both numbers and automatically know which number to use for outgoing calls based on a contact preference (personal contacts get the personal number, business get business, bonus points if it does some machine learning based on incoming calls).

Re:Simple.

[AndrewNeo]

I have a hard time thinking of a phone that won't split text messages, and at worst, MMS supports about ~1000 characters (on most phones)

Re:Simple.

[Anonymous Coward]

The IRS wants to dump the rule and so does Congress.

Re:Simple.

[Anonymous Coward]

Why would I want to pay for a second phone I don't need?

Because you want privacy.

Re:Simple.

[Red Flayer]

Technically your employer is supposed to figure out the percentage of business calls vs personal calls and either bill you the difference or include it on your W-2 as a taxable benefit. Few employers actually bother to do this but it is required by the US tax code.

Actually, it's still under debate... the IRS has not issued a final ruling on inclusion of company-paid cell phone charges as taxable fringe benefits.

Companies are not required to itemize charges and bill and/or include as taxable fringe; they can instead use some flat percentage.

But in practice, the IRS doesn't pursue the cell phone issue much -- if there are a lot of other taxable fringe that is escaping tax, they may include it, but if that's your only questionable item, they'll let it go.

I'm not your tax accountant or tax lawyer, so don't take what I've written as sound advice. It's just my experience with dealing with the IRS on this issue for my past couple employers.

Re:Simple.

[Anonymous Coward]

Not quite that easy since the phone only has 1 antenna and so can't talk to 2 different towers on different frequencies at the same time. They could, however, allow you to switch back and forth when you want to, it would just look to the carrier like the number you weren't using at the time was turned off.

Re:Simple.

[apoc.famine]

Shotgun!

Eeerrrr...I mean 'Gunner'!

Re:Simple.

[Scyber]

A few reasons:

So when you leave the company or get fired you won't lose the phone # and have to tell everyone you know your new #? If you are fired hopefully you wrote down all of your personal numbers from your phone book before security takes it away.

So your employer doesn't have access to a record of every call you make. If someone higher up is looking for a reason to fire you, they may start looking at your call activity and suddenly that phone call to a friend that works at a competitor will get you in trouble.

Re:Simple.

[Ingolfke]

Why would I want to pay for a second phone I don't need?

One reason might be so your company doesn't have legal access to your texts asking your mom if you can have some friends over to play D&D this weekend.

Re:Simple.

[Local ID10T]

I know what you're saying, but there may be some good reasons. We have employer issued phones at our workplace with unlimited plans. Making personal calls or sending texts during non-work hours does nothing to change the final bill, so we've been told to use them for our own personal use as well. We're required to have the phones & be "on call." Why would I want to pay for a second phone I don't need?

only if you don't want your employer to have access to the call log (who you spoke with and when) or to the log of the texts. If you aren't concerned about what your employer might find out, go ahead and use the free service they are providing. If you don't want them to know about it -don't use use their equipment.

Its just like any other use of company equipment. My typing this post on slashdot is being logged right now. If I thought that would be a problem for my employer to know about, I would not be doing it from my desk at work.

Re:Simple.

[Fujisawa Sensei]

Now why would you go and do something silly like pay for your own phone service when you can get the taxpayers to pick up the tab instead?

I know what you're saying, but there may be some good reasons. We have employer issued phones at our workplace with unlimited plans. Making personal calls or sending texts during non-work hours does nothing to change the final bill, so we've been told to use them for our own personal use as well. We're required to have the phones & be "on call." Why would I want to pay for a second phone I don't need?

Because you don't want your boss to know exactly who you're calling or texting?

What happens when you leave the company and they don't let you take the number with you?

And yes I have a company provided cell, and I still pay for my own to keep my business my own.

Re:Simple.

[spazdor]

I wouldn't want anyone knowing if I were listening to something like that. My employer least of all.

Re:Simple.

[Anonymous Coward]

There's also the whole independence and number ownership thing.

I've had the same number for about a dozen years, I don't want to give up that number as many people know it.

I could transfer it to work, but then I have to be concerned with leaving my job while the number is in the midst of a two year contract at my employer and no longer having ownership of my number.

Re:Simple.

[Bakkster]

MMS will also fit the actual nude photos...

Re:Simple.

[XxtraLarGe]

If you are straight edged AND boring...

Actually, that's what it says on my business cards.

Re:Simple.

[Jah-Wren Ryel]

Couldn't an employee just use their own phone to send private texts?

His department head made a verbal promise (in contradiction to written policy) that said it was OK to use the department equipment if the employee paid any overage fees.
Since the costs were flat rate, use-it-or-lose-it, that policy seemed entirely reasonable to me.

I've only read a summary of the decision - that the court ruled the department had an interest in controlling costs so they were free to do whatever they wanted - but it sure sounds like a bullshit ruling to me.

Re:Simple.

[mea37]

Ok, so the company has an asset. If they let you, you can use it, and there is no incremental cost to them. BUT, it's still up to them (1) whether to let you use it, and (2) if so, under what terms. Your employer has agreed to let you use it, so that puts (1) out of the way; but what about (2)? If they haven't specifically agreed otherwise, the terms include "you are making information like your call history available to us whether you realize it or not", because that's what naturally happens when you borrow someone's phone.

Would it be nice if everyone donated the excess utility of their private resources to someone else who can use them, no strings attached? I suppose so. Very few people do it, though.

Re:Simple.

[Anonymous Coward]

>> when using employer-provided devices
Are employer-provided repeaters considered "device"? My building has them so if I use my own cell, I still use employer-provided devices in effect.

Re:Simple.

[nine-times]

Yeah, that is the simple solution, but I think it fails to take into account what's really going on.

So here's the problem: Traditionally, businesses (or government agencies) have given their employees the equipment for doing their jobs, and it has been expected that the employee will not use that equipment for personal use. This has expanded to employees being issued smart phones.

However, people today think of phones are very personal objects. They keep their phones on their person close to 24 hours a day, and under most circumstances phones are absolutely filled with personal information. What's more, these "work phones" are often handed out specifically so that the business can interrupt your personal time, meaning you're supposed to take them with you when your outside the work environment. So the existence of "work phones" has become an issue of work intruding into the employee's private life, and because of that, people tend to think of their "work phones" as private.

Beyond that, there are practical considerations. Primarily, it's annoying to be carrying around 2 phones all the time when there's no real reason to do so. It takes up excessive pocket space; you have to keep track of them, keep them charged, make sure you're making your calls on the correct phone. Also, I have a personal calendar, and a work calendar. Am I supposed to keep them entirely on separate devices? If so, it's going to be very easy to get confused and double-book my time. I have personal contact and work contacts, but they overlap to some degree. Keeping them separate is possible, but impractical.

So I think there's a cultural tension there. Many people think that work equipment shouldn't be used for personal use, but for a lot of people that doesn't make sense with cell phones. It's like someone putting a 50-inch "work TV" in your living room and saying, "Only use this for work. If you want to watch the Superbowl, buy your own big screen TV."

Re:Simple.

[Anonymous Coward]

If you are straight edged AND boring, there is no reason.

Unless you're of a different religion or political party then your boss. Or you don't share his "enlightened" view on topics.

Eh, it pays.

Re:Simple.

[charliemopps11]

"Why would I want to pay for a second phone I don't need?" Oh I dunno... maybe so your employer couldn't read all your texts?

Re:Simple.

[butlerm]

If employers can monitor your text messages why not your voice conversations?

Employers generally have no means of monitoring text messages sent to and from employer provided phones unless the service provider breaks the law. The Ninth Circuit decision in Quon vs. Arch Wireless stands. Doubly so for voice conversations.

The only way around this effective constraint would be for an employer to be a service provider, the way employers typically provide email service on work computers. Or presumably, the employer could legally install custom code on employer provided phones that logs text messages. Generally speaking the employer has to inform the employee of all this, of course. Either way, the service provider cannot do it for them. That might seem like a technicality, but that is the law as it stands.

Re:Simple.

[Sancho]

You can have it both ways. It's called a stipend--your employer adds a little bit to your paycheck each month, and you use it to get a phone. Then they have the right to call/page you on it.

Re:Simple.

[farble1670]

Why would I want to pay for a second phone I don't need?

if you care about your employer reading your texts, then you do need it. your employer pays for your plan so you can be contacted when necessary not so you can use it personally. if you want to use those unlimited minutes for personal use, go ahead, but the plan still belongs to your employer so don't expect privacy.

it sorts of like if you had an office, and decided to make use of it for personal activities on the weekend. after all, the lease is paid up so it's not costing your employer anything for you to use the office then. would you expect that anything you do in your office on the weekends, while you are technically "off the clock" to remain private? no, it's still your employer's office.

Re:Simple.

[QuantumRiff]

When you use your employers email for all your personal stuff, and their cell phone as your personal phone it sure does save you money!

But if you get canned, or laid off, or whatever, you are in serious trouble. have to get everyone to switch to your new address, new phone number (good luck getting your employer to release the number for porting!)

Re:Simple.

[Anonymous Coward]

If you can fit the lurid details of your latest sexual conquest into 160 characters then it probably wasn't all that impressive ;)

Disagree. "ass to mouth"

Re:Simple.

[Sancho]

This is a case where SIP is great. Get your own number and just forward it to the company phone.

Re:Simple.

[stonewallred]

What I don't understand is that while there may or may not be an expectation of privacy when using an employers phone or computer, why would you even risk it? Seems retarded on the face of it, because it could be used against you at some point, no matter if they were "allowed" or not, to read your emails, texts.

Re:Simple.

[Shakrai]

You call those lurid details? Pathetic. I won't be living vicariously through you anytime soon ;)

How big were her tits? Where did you meet her? How many drinks did you have to buy her to get into her into the sack? Was she less attractive when you woke up sober the next day? Did she have any special moves that you hadn't encountered before? How many times did you do it? Bareback or safe sex?

Inquiring minds want to know ;) These are the important details that just can't fit into the limited space of an SMS or tweet.

Re:Simple.

[Coren22]

Except that the person who receives the cell phone bill can have all texts in/out included with the bill. Call your provider and ask about it, it is available.

Re:Simple.

[rpillala]

So you can sext your girlfriend and MMS

Especially if you work for BP.

Re:Simple.

[need4mospd]

Because I want the latest fancy phone/gadget so people think I'm cool. And because I want to appear important by having two phones. In fact, even when I'm not on call I'll carry both phones.

I'm so effing cool.

Re:Simple.

[GravityStar]

Well, that does it, I'm scheduling a conference call so that we can all learn how to do productive conference calls.

(j/k)

Re:Simple.

[Dishevel]

I am the logger here. Whoops don't seem to be any logs from this machine.

Re:Simple.

[mathfeel]

It's a necessity if you regularly have unprotected textual intercourse.

That's why I bought silicon skin for all my phones.

Re:Simple.

[conspirator57]

i get that there's some cultural tension brewing, but i think there are more important things for the supreme court to rule on than this frivolity. Like allowing innocent people whom our government delivered into torture to sue. *cough* Arar *cough*

http://www.clusterflock.org/2010/06/torture-means-never-having-to-say-youre-sorry.html

Re:Simple.

[Captain Splendid]

These are the important details

No, no. He mentioned the ass to mouth. Everything you mentioned is vanilla and foregone. It's like asking what swimsuits the SI models were wearing: nobody gives a shit.

Re:Simple.

[Miseph]

Or, moving away from doing things you perhaps ought not do... what if you're talking to prospective employers? What if you're going through issues in your personal life which are messy or acrimonious (ie. divorce) and simply can't let them to overlap with your job? What if your employer views all other employment, regardless of nature, as a conflict of interest and will act vindictively toward employees who take them on? What if you just don't want your employer to know what you do on your own time, because it's none of their business?

I can think of all sorts of reasons I wouldn't want my employer watching what I do off the clock even if what I'm doing is completely valid.

I can also see why the person footing the bill would have a right to see what it's being used for. Especially in this case, where the employer is, ultimately, ME. I don't want government employees doing inappropriate things with a phone I PAID FOR, and if they don't like it, they can either find a new line of work or pay for it themselves.

Re:Simple.

[Anonymous Coward]

If you can fit the lurid details of your latest sexual conquest into 160 characters then it probably wasn't all that impressive ;)

Yo-I jst fckd yr mom. She is 1 crzy btch. Lft her cuffd to yr bdrm clng fan. BTW u shld pbly burn yr pillow now. And yr shts. And yr bed. And all yr actn figrs.

Exactly 160 characters.

Re:Simple.

[Shakrai]

I'm not sure if I should bow down to your wisdom or run away in horror ;)

Re:Simple.

[Bigjeff5]

Don't laugh - I've heard of (but not been involved in any) meeting-planning meetings.

I'm like, huh?

Re:Simple.

[butlerm]

Except that the person who receives the cell phone bill can have all texts in/out included with the bill.

According to the Ninth Circuit, it is not legal for the provider to include such information except with the consent of the "originator" or "addressee" of the messages (cf. 18 USC 2702(b)(3)).

Re:Simple.

[nine-times]

Sure, I'd agree that there are more important things. It's just that if you ask me whether employers should have free access to anything present on or transmitted through employee phones, I'd say it's not a simple issue.

I have a company phone, and it's my only phone. If the company insisted on having access to all my sms messages, I'd get myself a new phone, pay the bill, and refuse to carry a company phone. Having a free phone is, in my mind, part of the compensation for being expected to answer work calls outside of business hours. It's not even adequate compensation.

Re:Simple.

[Kizeh]

The ability to have multiple lines on a single SIM has existed for years, and such SIMs, operator support and phone support is fairly commonplace in the rest of the world for exactly this kind of issue -- have one line for work, one for personal calls, but only carry one phone.

Re:Simple.

[Lehk228]

that consent can be in the pile of papers you sign when you are hired, it doens't even need draconian enforcement, if you refuse your phone will have no messaging capability

Re:Simple.

[Anonymous Coward]

So you can sext your girlfriend and MMS pictures of your cock to her.

So you can text your best friend the lurid details of your latest sexual conquest.

but i do want to share these things . :)

Re:Simple.

[jabbathewocket]

If your not concerned that your use is gonna be illegal or embarrassing of course you dont need to pay for your own duplicate service.. That said.. government employees none of them should be issued cellphones imo, theres no logical reason for them to be distributing something that serves no work related purposes..

I mean really who is using government issue cellphones and in what way are they work related to begin with?

Re:Simple.

[jabbathewocket]

Did you even read the article?

Or are you just trying to sound smart?

This IS THE Quon case ruled on by the supreme court, saying that there is no expectation of privacy on a employer issued device.

ANY Communications that are made over the device are open to recording and interception, the fact that it is a cellphone is in no way overriding the fact that its a "work issued" device.. if the employer wants to record every call in and out of its devices they can simply say "we record all conversations to improve service" and they are covered. If you do not like it.. use a private phone rather than leeching from the office.

Re:Simple.

[jabbathewocket]

And according to the supreme court.. the 9th circuit was wrong, RTFA.

Re:Simple.

[butlerm]

If the consent is explicit enough, yes. In order to obey the law though, the service provider probably needs a copy of that consent for each employee. Otherwise the provider has no idea whether they can legally intercept or not.

Re:Simple.

[butlerm]

I think a better question is whether you read what I said, not to mention both the appellate court decision in Quon v. Arch Wireless and the Supreme Court decision in Ontario v. Quon. The pertinent law in 18 USC 2702 might be a good idea too.

(1) First of all, the rules are somewhat different for private and public employers. This Supreme Court decision only applies to the latter, and they decided on much narrower grounds than you suggest, with regard to exceptions to the Fourth Amendment for government employers. The Fourth Amendment does not apply to private parties, although various other state and federal laws do, of course.

(2) In Quon. v. Arch Wireless, the Ninth Circuit court held that the service provider cannot do what they did, at least not without the explicit consent of the end user. Meaning if employers want to do this with such a service in the future they either need to forward explicit consent from every pertinent user to the service provider, so that the latter can be in the clear, or they need to install custom code on their own devices, log it themselves, and (generally speaking) notify the employee that they may be monitored anyway.

Re:Simple.

[butlerm]

The Ninth circuit was overruled with regard to the issue at hand in Ontario v. Quon, which governs the actions of government employers.

The Supreme Court declined to hear the appeal in Quon v. Arch Wireless, a Ninth Circuit Court decision which governs the actions of service providers (interpreting 18 USC 2702). Not only that, the Supreme Court said the issue with service providers was irrelevant to the legality of the actions of the Ontario Police Department.

My comment applies to the legality of the actions of the service provider. Big difference.

Re:Simple.

[vux984]

"it sorts of like if you had an office, and decided to make use of it for personal activities on the weekend. after all, the lease is paid up so it's not costing your employer anything for you to use the office then. would you expect that anything you do in your office on the weekends, while you are technically "off the clock" to remain private? no, it's still your employer's office."

Its sort of like if you had a pen in your pocket and you instinctively reached for it to take down notes when your doctor called you on your private line, at home, after hours, and then your employer claims they have a right to see what was written... since they own the pen.

Of course, one day I lost my work pen, and brought in one from home, and somehow it ended up in the CEO's hand, so naturally I'm suing now him for transcripts of everything he wrote with *MY* pen...which based on their argument that they have a right to monitor what was written with theirs they can't really refute that I have a right to monitor what was written with mine.

Somewhere there is a balance. If the phone is agreed to be available for personal use then they really have no business monitoring that aspect of it.

Re:Simple.

[karcirate]

If employers can monitor your text messages why not your voice conversations?

Because recording audio of someone's conversation without consent is illegal, even if on a cell phone you own.

Re:Simple.

[JWSmythe]

    Sad, but it's very true. Lets have a meeting to figure out what we're going to talk about in the next meeting. And of course, another meeting to schedule an appropriate time for that meeting. Following the actual meeting, you'll have a post-meeting meeting to discuss items in the meeting, and finally a meeting to decide what action to take based on the actual meeting.

    They weren't always entertained when I'd fall asleep. When I'd get nudged, I'd just ask if it was the real meeting, and remind them not to wake me up until we were talking about something productive. :)

    Meetings are great though. You can waste an entire week talking about what work could be done in one day. :)

Re:Simple.

[farble1670]

yay analogies :)

pen = phone keyboard
pad of paper == phone storage

in this case the employer owns the pen and the paper.

if your employer owned the pad of paper, then yes they probably do have the right to see what was written. we don't really need to use an analogy for that ... i have papers in my office. my employer has the right to rifle through them if they want. it's their property, their writing pad. i'd never write personally sensitive information in my work notepad, and i shouldn't write personally sensitive texts on my work phone.

Somewhere there is a balance. If the phone is agreed to be available for personal use then they really have no business monitoring that aspect of it.

would you rather have your employer tell you

1. never use this phone for any personal communication, if you do you will be fired
2. you can use this phone for personal communication, but it is subject to inspection

#1 is protection for dummies that can't or don't want to understand the "subject to inspection" part. #2 gives you the freedom to make decisions like "i'm going to have a 2 hour boring conversation with my grandma, i'll burn minutes on my work phone for that", and "i'm planning my next big coke party, better use my personal phone for that."

i'd rather have #2.

Re:Simple.

[denobug]

Employer with a descent size typically has an IT and telecomm device usage policy. It is very typical that they spell out the exact details on what the employer's rights are and what is employee's responsiblity. It will also spells out in great details on what you can and cannot do with the devices under the specified circumstances. It may souund like a lot but in reality it is just mostly common sense. The most important thing is that they want to make sure everyone understands that the devices belongs to the company, and you have no personal rights when it comes to between you and the company over the usage of the device, and that the intend purposes of the devices is for business purposes, even if the personal activities are allowed under the specified circumstances. Pretty straight forward in my mind.

Re:Simple.

[vux984]

i'd never write personally sensitive information in my work notepad...

So if you jotted a number down for work on a sticky note, and then stuffed it in your pocket after making the phone call. Then you needed to record something personal while you were out, so you reach into your pocket pull out the sticky note, and then put it back in your pocket to fumble for something else because that particular piece of scrap paper belongs to your employer.

would you rather have your employer tell you

1. never use this phone for any personal communication, if you do you will be fired
2. you can use this phone for personal communication, but it is subject to inspection

3. you can use this phone for personal and business communication. We don't monitor your usage provided there are no extra charges.
4. You provide your own phone personal and business communication. Here's a 10 cent raise to cover the work portion of the cost/you can expense $40 montly plus your work related long distance on an itemized sheet/some other co-pay solution...

You can have #2 if you like. But I've had both #3 and #4. There are situations where #2 or even #1 make sense but most of us have no reason to be subjected to that sort of hassle.

Re:Simple.

[JWSmythe]

    It depends on the company. One provider who I won't name (_extel), I was bitching about the overages, so they faxed me all the texts that came through that month. It was complete. From, to, and message. They kept it all on file.

    I'm on a prepaid phone now. They won't provide me with even the call list, much less texts. Probably because it's prepaid, they don't want the extra overhead of storing that data. I wasn't just casually asking about my service. I had received a threatening call, which appeared to be to the wrong number. I wanted to know who it was from, so I could contact the police. "Bob, I'm going to kill you, your family, your friends, and even your dog.". Sorry, I'm not Bob, and I don't own a dog. :) Whoever Bob is, is going to need protection from the nutjob though. The providers answer was (after checking with their supervisor) "We don't maintain any call history for any of our users, so unfortunately we can't tell you or the police who it was." That made me feel a little bit better about making calls on it, so I'm still their customer. :)

Re:Simple.

[JWSmythe]

    That's an easy one though. The call or text is to the owner of the phone. The owner of the phone is your employer. The addressee is 2125551212@someprovider.blackberry.net, which is therefore owned by the your employer. You just happen to be using their phone in the course of your work.

    Much like the golden rule, he who pays the bills makes the rules.

Re:Simple.

[JWSmythe]

Msg: Hey Bob, check this out. You know how the bosses daughter is really fucking hot?
Msg: I was talking to her in the elevator. She asked how big my cock is, so I told her to check for herself.
Msg: We skipped our floor, and went up to 11. You know, the floor that no one uses.
Msg: She jumped up and wrapped her legs around me. I carried her to that corner office.
Msg: She ripped my clothes off. Her clothes came off like they were nothing.
Msg: You wouldn't believe how perfect her body is. She's 21, so it's all good.
Msg: She started sucking my cock right there. I guess she liked how big it is. :)
Msg: I started fucking the shit out of her, and she came twice before I knew it.
Msg: then she wanted me to fuck her in the ass. God it was tight.
Msg: After I came in her ass, she wanted to suck me clean. What a dirty slut.
Msg: I already emailed my super and told him I'm home sick today.
Msg: We're going out for drinks when she can walk again, and then to a hotel.
Msg: shit don't tell my wife. I'll call her and tell her we're having a work emergency, and I won't be home.
Msg: shit, did I send that to your work phone? Make sure you delete all of the msgs!

    Nah, it'd all fit in text messages. Unfortunately, since you didn't come into work, you didn't know Bob got fired this morning, and the phone was sitting on the bosses desk in case any texts or calls came in from customers. Worse than that, his daughter is only 17. She has a fake ID so she can drink. Tomorrow is not going to be your day. The boss is thinking "Call the cops, or just kill him. The bastard will die."

    If only you had consulted with the BOFH first. Always ask the BOFH for advice. BOFH knows all and sees all, even the video from the 11th floor, that he'll be putting online in about 5 minutes, under your name. Not only would he have warned you she was only 17, he would have emailed you her last STD report. It wasn't good. It won't matter much, you won't live to see the weekend.

Re:Simple.

[butlerm]

The call or text is to the owner of the phone

Not according to the Ninth Circuit it is not. Good theory though.

Re:Simple.

[jabbathewocket]

I suggest you go reread your source material, as you are way off base with regards to which case is which.. and what they actually cover..

Suffice it to say that *every* SMS provider can and will provide copies of incoming and outgoing texts to the person or company paying the bills.

If you are using workplace equipment, you have no expectation of privacy, this goes back to pre-internet days.. and nothing has changed.

The cases currently under review have to do with internal policy (allowing private use of company property if the user pays the overages) IE they where considering what sort of access the provider of the device has (the employer) when they ask the employee to pay a portion of the charges.. does that change the privacy expectation from non existant to partial. The other case was purely about "you did something and i am taking you to court" Because both of these cases where about partial employee payment, rather than simply provided goods.. is the only way they got in the door of the court, otherwise they would have been tossed out.

Re:Simple.

[butlerm]

You should read this article from the EFF. The Ninth Circuit case is here. There were two appeals to the Supreme Court. The Court granted certiorari on the Ontario appeal and denied it on the Arch Wireless appeal.

In the Quon v. Ontario decision, the Supreme Court held that what the Ontario Police Department did was reasonable under the Fourth Amendment. In its refusal to hear the Arch Wireless v. Quon appeal, it let the Arch Wireless part of the Ninth Circuit decision in Quon. v Arch Wireless et al stand, namely:

We hold that Arch Wireless provided an "electronic communication service" to the City. The parties do not dispute that Arch Wireless acted "knowingly" when it released the transcripts to the City. When Arch Wireless knowingly turned over the text-messaging transcripts to the City, which was a "subscriber," not "an addressee or intended recipient of such communication," it violated the SCA, 18 U.S.C. 2702(a)(1). Accordingly, judgment in Appellants' favor on their claims against Arch Wireless is appropriate as a matter of law, and we remand to the district court for proceedings consistent with this holding. (Quon v. Arch Wireless et al, Ninth Circuit Court of Appeals (2008))

The Supreme Court denied cert. when Arch Wireless appealed this point. The Court stated in the case it did hear:

Respondents argue that the search was per se unreasonable in light of the Court of Appeals' conclusion that Arch Wireless violated the SCA by giving the City the transcripts of Quon's text messages. The merits of the SCA claim are not before us...The otherwise reasonable search by OPD is not rendered unreasonable by the assumption that Arch Wireless violated the SCA by turning over the transcripts. (Ontario v. Quon (2010))

The Supreme Court declined to hear the appeal of Arch Wireless, thus (in the Ninth Circuit at least), that part of the Ninth Circuit decision (that Arch Wireless, as an "electronic communication service" provider, acted illegally, as a matter of law) stands.

Re:Simple.

[Coren22]

Which provider was that? I wouldn't mind putting some service thier way

Re:Simple.

[JWSmythe]

    Oddly enough, Boost.

    They're good though. They don't check any data you provide when you sign up for an account. The i290 is $49.99 on their site, but I've seen it much cheaper in random stores. You buy the phone with cash anywhere. When I bought phones, they don't ask questions, they just smile and say "have a nice day", like you just bought a pack of gum. You buy the refill card with cash, again with no personally identifying information. Then you go online and provide whatever information looks legitimate enough to be a real person to active it. No human interaction required. Just note down the info you used, in case you need it later. All I believe is ever necessary is the phone number and PIN.

    I didn't do that though. I provided mostly legitimate information, I promise.

    I don't recommend using a name like "John Doe", but you'd probably be able to get away with "Co Ren" I did find a few people named Co Ren in a quick online search, so it's not an impossible name. :)

    $50/mo gets you unlimited everything.

    Pay as you go is $0.10/min and $0.10/txt.

    If you opt to get a Blackberry, you have to get it in a Boost store. I don't believe they require any personal info. The service is $60/mo, unlimited everything. It can be tethered with tetherberry, and the speeds aren't bad. (Sprint EVDO network).

Re:Simple.

[noidentity]

We have employer issued phones at our workplace with unlimited plans. Making personal calls or sending texts during non-work hours does nothing to change the final bill, so we've been told to use them for our own personal use as well. We're required to have the phones & be "on call." Why would I want to pay for a second phone I don't need?

If you need a phone that isn't monitored by your employer, then it sounds like you do need a second phone.

Re:Simple.

[Anonymous Coward]

If you act like everything you do is completely public then *THEY* have already won.

Re:Simple.

[jonaskoelker]

This.

This is why I never talk to sysadmins :(

Re:Simple.

[Vlado]

While having multiple lines on a single SIM would work for normal private/business usage two SIMs usually do not.
Most of the phones that support two SIMs will not be actively be running both at the same time. Which means that you're unavailable to your friends during business hours (or bear risk of same privacy issues as originally). After hours it would make it impossible to be on call since your work SIM would be off at that time.
So it's not a perfect solution.

And I'm not even going into the ability to handle text messages separately... Most of the time two phones are still way simpler.

Re:Simple.

[flyneye]

Let's define apples and oranges here. We are talking about "government" employers, specifically federal rather than state.
Here's a neat trick, go down to your local federal courthouse, military base or post office. There, now, we will make your constitutional rights disappear. Step from the public sidewalk on to the government land. Now how does it feel not to have constitutional protections afforded those in the several states? Get where I'm going with this?
Most people don't realize this loophole the courts and government have been using for some time now. I've met intelligent lawyers who didn't realize it.( some do, most don't)
          So either ditch the government job or tolerate the loss. Just keep it in mind.

Re:Simple.

[JWSmythe]

    What? You don't like friendly warnings that would save your life? Or the fact that I posted your texts for the world to see.

    Ignoring your best resource is kind of like walking across a busy intersection with your eyes closed. Neither is a good idea.

    Or in the words of someone famous, "Jonas, Give yourself to the Dark Side."

Re:Simple.

[MBGMorden]

Why would I want to pay for a second phone I don't need?

Because if you want your communications to remain private, you DO need that second phone?

Even if they say it's ok to use for personal business, there's pretty much an explicit right for them to monitor what's done on any equipment that own. I too have a company issued Blackberry that I have to carry for on-call purposes. It is always with me but you can be darned sure I have my own personal phone too. And I appreciated that fact when I discovered that all web traffic from that device still filters through the BES server (no one in IT was even aware until we put up a stricter filter and all the BlackBerrys' web access went down).

I'm certainly happy that I hadn't be using that phone to just browse whatever popped into my head with it sending all data back through the company proxies - regardless of the fact that I was technically allowed to utilize it for personal use.

Re:Simple.

[butlerm]

Here's a neat trick, go down to your local federal courthouse, military base or post office. There, now, we will make your constitutional rights disappear.

It is actually exactly the opposite. Constitutional rights are protections against government, not private action. Whatever happens to you in a federal courthouse is subject to Fourth Amendment constraints. Whatever happens to you in a private business is not (albeit subject to others).

Re:Simple.

[Anonymous Coward]

Worse than that, his daughter is only 17. She has a fake ID so she can drink. Tomorrow is not going to be your day. The boss is thinking "Call the cops, or just kill him. The bastard will die."

The age of consent is either 16 or 17 in more states than it is 18. It only seems that 18 is the norm because most mass media is produced in California and New York. So depending on which state this hypothetical scenario takes place, your hypothetical texter won't have to worry about prosecution for statutory rape. Of course there are many significant social and professional consequences even if what he did wasn't a criminal offense.

Re:Simple.

[Golddess]

No. 1.0: Don't quote me regulations! I co-chaired the committee that reviewed the recommendation to revise the color of the book that regulation's in.
[hardens his tone]
No. 1.0: We kept it gray!

Re:Simple.

[Golddess]

Sure, just as they could also use their own laptop to do non-work things with. Far easier I think to have just 1 of each device, with a sort of "work/personal" toggle to it so you don't get into the whole "invading privacy" issue by only monitoring the device when in "work" mode.

Hmm. "A method of linking a single phone with two separate accounts". "A method of dual-booting a laptop that allows for booting up of the secondary OS without shutting down from the first". Someone should patent those. ;)

Re:Simple.

[flyneye]

Actually it isn't the opposite. Your rights against unreasonable search and seizure evaporate on federal holdings. Your rights cover you in the several states or the "u.s.", you might as well consider the fed or the "U.S." a foreign country with laws all its own. If you think about it for a while you will realize this is why previous citizens of the several states entered into military service can become "property" and are subject to laws that are not constitutionally tolerated.
        This is also the way those being run through Tax court can be denied legal council until the last second before trial. As a prisoner they may be shuffled around state to state, jurisdiction to jurisdiction, without being able to communicate with anyone in the several states, even a lawyer who may not know where their client is, or the details of the charges until court actually begins. Quite an old and overused trick of the government. There are many other example, but you can chew on these for a bit.
      Ever notice that none of those Senators, Congressmen, aids or anyone else IN the government actually live in D.C.? Guess why?

         

Re:Simple.

[butlerm]

"our rights against unreasonable search and seizure evaporate on federal holdings."

Not according to the Supreme Court, they don't. The real debate is about what is "reasonable", which can vary dramatically with circumstance, generally as determined by federal case law.

No doubt the Court allows authorities greater latitude on military bases than elsewhere. Overseas bases are another matter altogether. No civil jurisdiction, generally speaking.

Re:Simple.

[flyneye]

The supreme courts realm is over the several states constitutional matters.Notice that they don't preside over impeachments or other D.C. follys. Anything else you derive from media sources is just the ignorant commenting on the misunderstood. It is quite easy to just deny unpleasant inconvenient truths rather than explore, examine and expose the forbidden.

Re:Simple.

[butlerm]

"The supreme courts realm is over the several states constitutional matters"

Sorry, No. Prior to the adoption of the Incorporation Doctrine at about the time of the civil war, (as a rule) the Supreme Court did not review state laws at all. The (federal level) Bill of Rights did not apply to the states until that time.

Not only that, the federal courts defer to the state courts as to the interpretation of the individual state constitutions.

Re:Simple.

[JWSmythe]

    Well, for the sake of argument, we'll assume my fictional story was in one of the states where the age of consent is 18. I'm sorry it offended you. If it makes you happier, you can read the "17" as "15".

    I know I was in a state a few years ago, and someone told us the age of consent was 14. We made jokes about it, until we looked it up. Turns out it was. Our jokes were much less funny. The state changed their age of consent not too long after that.

    Federal law uses 18 as the age of consent, so if federal charges are brought up, you could be in for a lot more trouble than you thought. This may include things like transport of a minor for "immoral purposes" (see the Mann Act).

    Where I have read up on it, some states have provisional rules on it, and a sliding scale for such consent. For example, a 16 year old year old minor with an 18 year old adult may not be against the law, because the law recognizes that there may be a small age gap. The state I specifically know of this is one of the ones listed with an age of consent as 18. In some states, the lower limit is actually much lower, which is scary. Laws are only enforced when the legal system will enforce it. You'd be hard pressed to find a state where childhood friends aged one year apart, who became romantic partners, would be arrested when they were straddling the age limit.

    Myself, I avoid the situation all together. I'm well past every jurisdiction's age of consent, and I date within my age appropriate range.

    Here's the breakdown of the states, since you mentioned it.

    16 - 31 states (60.78%)
    17 - 8 states (15.68%)
    18 - 12 states (23.52%)

  16: Alabama, Alaska, Arkansas, Connecticut, District of Columbia, Georgia, Hawaii, Indiana, Iowa, Kansas, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Montana, Nevada, New Hampshire, New Jersey, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Vermont, Washington, West Virginia

  17: Colorado, Illinois, Louisiana, Missouri, Nebraska, New Mexico, New York, Texas

  18: Arizona, California, Delaware, Florida, Idaho, North Dakota, Oregon, Tennessee, Utah, Virginia, Wisconsin, Wyoming.

And?

[2obvious4u]

The ruling was for devices provided by the government, did you expect anything less? If it was for your own personal phone, that would be different.

Re:And?

[Anon-Admin]

Agree and with disposable phone in the 9$ range with 20$ card and txts at .10 each it seems they could use something other than the government provided phone.

Now how about a ruling that all government agencies have to keep copies of all texts and make them part of the public record to promote transparency in government. That would be news and something I would be interested in. lol

Re:And?

[Shakrai]

I'm more worried about the fact that the wireless company kept a transcript of the text messages than I am about the fact that some municipal government kept a copy of them. What legitimate purpose is served by a wireless provider retaining copies of text messages that have been successfully delivered to the end user?

Re:And?

[XxtraLarGe]

What legitimate purpose is served by a wireless provider retaining copies of text messages that have been successfully delivered to the end user?

They're probably forced to by the government.

Re:And?

[Mitreya]

The ruling was for devices provided by the government, did you expect anything less? If it was for your own personal phone, that would be different.

Exactly! Just don't use a government device for any private stuff and you'll be fine. It's not like all your communication has to go through it -- presumably just the work related things, which are not particlarly private. I don't care who reads my work emails/sms-es/etc as long as my personal phone is off limits.

Re:And?

[Shakrai]

No, the Government only compels them to keep the pen-register data, i.e: who you called/texted and when. I am unaware of any law or regulation that compels them to retain copies of the actual messages. If you have a citation for such a law in the United States I would be most interested in reading it.

Re:And?

[DaFallus]

What if you own the phone but your employer pays for the service tied to the SIM card?

Re:And?

[AsmCoder8088]

While you are correct that the best bet is to simply not use the department-issued device for personal texts, the lieutenant specifically stated that the text messages would not be audited. Then they changed their minds and started auditing them. He had a reasonable expectation of privacy, it would seem.

The oral argument at the Supreme Court hearing from both sides can be read here

Re:And?

[Pharmboy]

That might explain why it is a 9/0 ruling, which is rare. It would seem common sense that if you use any employer supplied device (phone, computer, whatever) that the employer has the right to view what traverses their network and devices. This case might have been about the government as an employer, but I would expect no less protection for the private sector. And yes, protection is the right word. If you start making threats to someone (as an example) using company property, they might could be held partially liable as their gear facilitated the communication. Even if that wasn't the case, IT IS NOT YOUR PHONE/COMPUTER, you shouldn't expect privacy.

Now, on your OWN device, at work, that is a different story. They can fire you if they want, for spending all day texting instead of working, but they don't get to see what you are doing without a subpoena. Seems fair enough, and common sense.

Re:And?

[interkin3tic]

The ruling was for devices provided by the government, did you expect anything less?

To their credit, enforcement of government regulations seems pretty hit and miss. The guy was on SWAT, so he may have been expecting this to go the way of so many investigations into police misconduct. And there may have been some revenge motives behind this rather than sound legal reasoning: he sued the city after "...transcripts showed that Quon had been exchanging sexually explicit messages with his wife, his girlfriend and another SWAT team member."

I'm guessing all three may have found out and been mad at him, and rather than accept the consequences of his philandering, he chose to blame the investigation.

Re:And?

[butterflysrage]

why else? catching terrorists... got to catch em all!

Re:And?

[shentino]

It's whatever your employment agreement says.

Re:And?

[SydShamino]

And if you company wants to issue you a cell phone, you can always tell them "Thanks but no thanks, I only want to carry one phone. How about a monthly stipend to offset the cost of my personal phone?"

It's still your phone, your employer is just helping pay for their usage of it. Your privacy should remain intact. (IANAL etc.)

If they say no, carry two phones or find a better employer. Simple enough.

Re:And?

[Khashishi]

Who said the government needs to write a law to force them to do something?

Re:And?

[wolrahnaes]

IANAL, but that would probably mean they would have no rights to examine the device itself, but any records available through the telco would still be fair game.

Re:And?

[Qzukk]

You were probably also unaware of the government withholding contracts from telcos unless they participated in their little warrantless wiretapping venture back after 9/11, at least until Qwest refused to participate and got their contracts cancelled and their CEO sued.

It doesn't take laws or regulations to pull the strings of corporations, only money.

Re:And?

[UnknowingFool]

While you are correct that the best bet is to simply not use the department-issued device for personal texts, the lieutenant specifically stated that the text messages would not be audited.

My supervisor can promise anything at work, but that doesn't mean he had the authority to do so. Also policies can be changed by your employer at any time unless you had a contract with your employment or the change violates some law.

Re:And?

[Shakrai]

No, I'm well aware of that particular issue. It cost Barack H. Obama my vote and my campaign contributions.

Re:And?

[TreyGeek]

Would text messages be equivalent to e-mails? Government agencies are required to retain copies of all e-mails, IIRC. If texts are equivalent to e-mails then they would need to be saved. It may be easier for the phone provider to archive the texts than for the government agency to intercept them to archive them.

Re:And?

[TubeSteak]

No, the Government only compels them to keep the pen-register data, i.e: who you called/texted and when. I am unaware of any law or regulation that compels them to retain copies of the actual messages.

Try asking your cell phone company to provide you with a copy of a deleted text.
We know that police can subpoena "deleted" text messages from your account, but if you ask for it, they'll politely tell you to fuck off and die.

Re:And?

[geekoid]

The courts. assuming they want to do anything with the data.

Re:And?

[geekoid]

" IT IS NOT YOUR PHONE/COMPUTER, you shouldn't expect privacy."

Why not?

Re:And?

[butlerm]

The only exception is national security, under presidential authority, and that is highly controversial. Otherwise it requires a law.

Re:And?

[Hyppy]

The opinion also states that it is not an unreasonable search, since he was a) notified beforehand that he was monitored, b) the reason for looking at the records was noninvestigative, and c) that it occurred in the course of normal business. The court SPECIFICALLY avoided establishing an opinion on expectation of privacy by public sector workers. But... don't let that stand in the way of good ol' Slashdot hand-wringing.

Re:And?

[Foobar of Borg]

What legitimate purpose is served by a wireless provider retaining copies of text messages that have been successfully delivered to the end user?

Ahmed get teh bmb rdy k? Allah FTW!

The government would probably use the excuse that they need to be able to access text messages like this for an investigation.

Re:And?

[Pharmboy]

Now how about a ruling that all government agencies have to keep copies of all texts and make them part of the public record to promote transparency in government.

If it wasn't so difficult to enable, I would agree with the concept 100%. If technology allows some part of that to happen without a ton of cost or inconvenience, I say release everything that you reasonably can, even if they anonymize the source. Our taxes paid for it, after all.

Re:And?

[JWSmythe]

    The same reason as if you came to my house and used my computer to check your email. It's my computer, I can do anything I want with it, including incremental screen shots, keystroke logging, and packet sniffing. When you leave, it's all fair game.

Re:And?

[Killjoy_NL]

Osamachuuuuuuuuu I choose youuuuuuuuuuuuuu :D

Re:And?

[Luscious868]

If the government or any other employer provides you with a device, such as a PC or cellphone, you should assume that anything and everything you do on that device can be and is being monitored. It's their property not yours.

Re:And?

[Anonymous Coward]

Because you are free to buy your own if that is what you want. You shouldn't expect privacy using someone else's property unless you are paying (even then it can be iffy) or you have an agreement explicitly stating you get privacy.

Re:And?

[butterflysrage]

Bubba Bush evolves into Religious Nut-bar and attacks the Constitution, it's super effective!

Well, duh

[Anonymous Coward]

Something you send on someone else's hardware isn't private.

Is anyone surprised?

[sean.peters]

Your employer having access to things you do with IT equipment they furnish is pretty much standard operating procedure, and has been for some time now. I'm having some trouble understanding how this even got to the Supreme Court. The fact that the government allowed them to use the devices for personal messaging doesn't mean that it gave up the right to see what they were doing with them.

Re:Is anyone surprised?

[e2d2]

I think it actually had merit, but only because there is precedent with the phone. If you are an average government employee (not a classified position, let's exclude those for this argument), and you use their land line telephone to call home, are you entitled to privacy? It's a legit argument, but the supreme court ruled "use your own" and that's that.

Re:Is anyone surprised?

[Dragonslicer]

I'm having some trouble understanding how this even got to the Supreme Court.

From an AP article I read earlier, it was because the officer in the case was told when he received the device that as long as he paid any extra costs, his activity wouldn't be examined. This wasn't a formal policy, though. The 9th Circuit court said that the informal policy was enough to give the officer an expectation of privacy, and the Supreme Court disagreed.

Re:Is anyone surprised?

[Bigjeff5]

"Will not" and "can not" are two entirely different things. With no compensation in return for the bonus of not having your private messages monitored, there isn't even a verbal contract there. If he was promised something by his boss, it doesn't bind anybody further up the chain. Furthermore, it's rather douche-bagish, but there is nothing keeping the boss from breaking his word either.

Re:Is anyone surprised?

[nurb432]

The problem is that with government 'owned' devices, the taxpayers/users are part owners. This may be why it got so far in the courts before common sense prevailed.

But i agree, it really doesn't matter who you work for, if its not your device, its not your data.

Re:Is anyone surprised?

[forkazoo]

Your employer having access to things you do with IT equipment they furnish is pretty much standard operating procedure, and has been for some time now. I'm having some trouble understanding how this even got to the Supreme Court. The fact that the government allowed them to use the devices for personal messaging doesn't mean that it gave up the right to see what they were doing with them.

Indeed. When i was in corporate IT doing a lot of end-user support and training a few years ago, we always operated under some basic rules:
* Sometimes I need to capture network traffic to see what the hell is making that switch act funny. If I intercept an email about the costume you want to wear when you next have intimate relations, it's your fault for using my network to send the message. Even if I find it hilarious.
* Sometimes I decide to re-image machines because they are acting funny and might have a virus or whatever. I decide when to do this. You've been told not to store work-related data on the laptop. You have been provided with VPN's, network shares, and everything else you need for storing data safely. If I delete your only copy of a novel you just wrote, that's your fault. You shouldn't have been storing it on a laptop that wasn't yours.
* Sometimes, I decide to replace your assigned Palm Pilot. (This was a few years ago. One or two people had "smart" phones, but they weren't common yet.) I may decide to give you a nicer one. I may decide to give you a crappier one and give yours to a boss. You've been shown how to sync your Palm Pilot with your computer, so you should never lose significant data when I replace it with a wiped one. If the shopping list on your PDA includes condoms, and a Real Doll, I'll probably make fun of you.
* IT Giveth. IT can Taketh Away whenever it feels like it. IT can read.

We may have been slightly less colorful in explaining the rules to users, but it was pretty close. We occasionally had people with very personal stuff on their work machines and devices because they considered the lack of control over the data to be acceptable, but it was always explained that the devices were ours. We occasionally destroyed iTunes music libraries, and things like that. We explained to the users that they were lucky to have permissions to be able to install iTunes in the first place. They generally accepted it, and we never had to go to the Supreme Court to establish, "This is ours, we can see what it is used for."

Frankly, I think that things like cell phones paid with public funds should have texts made part of the public record, and freely available. Temporarily hold back publishing if there is something actively related to an active investigation like, "We are sending the SWAT team to XYZ's house at 3:00 pm on the 12th to arrest him." But, anything held back should have a clear notation of when it will be available. (XYZ is arrested, or the 13th of the month).

Re:Is anyone surprised?

[Talizorah]

What makes this decision so interesting is that the court treated the OPD's audit of the pager text messages as an entirely separate issue and still concluded that it was reasonable under the language of the Fourth Amendment.

The OPD requested the transcripts in order to analyze how much of the contract overage was being caused by legitimate work-related use of the devices (and to that end, determine whether or not the OPD's contract with the provider needed to be renegotiated).

Auditing the text message transcripts was therefore a necessary (and reasonable) step in determining how many characters were being used to send work-related messages, and extrapolate from those figures how many more characters might be needed under a new contract for the devices to be utilized efficiently by officers in the course of their duties.

Therefore, even if Quon did have a reasonable expectation of privacy, the audit still wasn't a violation of the Fourth Amendment.

Always seperate work and personal

[alphax45]

My wife’s job wanted her to use her personal Blackberry for work emails and such. I told her that you always have to keep it separate because: - what if you leave? - what if we go over our data? Are they going to pay the overage? can we prove it was because of work stuff? - what if you accidently send work things to personal contacts and vice versa? It opens too many issues. If work wants you to have a device for work, they provide and pay for it and you use it ONLY for work. Simple.

Something to think about?

[TheGreatHegemon]

it may give private sector employees something to think about when using employer-provided devices

Not really, I've always assumed nothing is private on employer provided devices, no matter who my employer.

Re:Something to think about?

[Anonymous Coward]

That depends on your country's culture. In the US employees are merely glorified slaves. Around here on the other hand you have some degree of privacy and employers for example are not allowed to monitor employees' private emails.

Re:Something to think about?

[Attila Dimedici]

I live in the U.S. and my employer is, also, not allowed to monitor my private emails because my private emails are not done using my employer's computers.

Re:Something to think about?

[Anonymous Coward]

And where exactly is "around here" for you? It's a big world, you know...

Re:Something to think about?

[Anonymous Coward]

Yes, glorified slaves making 6 figure salaries with excellent health benefits and a completely employment-at-will contract. Oh, the humanity!!

Moron.

Re:Something to think about?

[Anonymous Coward]

As long as you are not using their internet connection, their computer, or their email server/account you are safe. In this case they were using a company issued device, and therefore should have 0 expectation of privacy unless guaranteed in writing elsewhere (e.g. an Employment Handbook or HR policy).

If you send "private" emails using your work account you _are_ using your employers computers. (Their servers handle and process the mail and it is subject to whatever retention and audit policy they have.) I think we are agreeing on the point here, but I want to clarify because I've had employees in the past say they sent emails using their home pc and it is not subject to monitoring while they did it through a corporate account...Best to just have this all written anyway, this way nobody can say "I assumed this, or I thought that". One of the few times I think IT Policy really protects our asses.

Re:Something to think about?

[corbettw]

Employers are never allowed to monitor employees' "private" emails. Which means their non-work accounts.

Seriously, how hard is it to sign up for a Hotmail or Yahoo account and keep your work life distinct from your private life?

Re:Something to think about?

[Attila Dimedici]

I agree. When I use my corporate email account, I am speaking as a representative of my employer and I expect that they may monitor what I say. Considering that they can be held accountable in a court of law for what I say in an email from my corporate account, that only makes sense.

Re:Something to think about?

[Anonymous Coward]

Employers are never allowed to monitor employees' "private" emails. Which means their non-work accounts. Seriously, how hard is it to sign up for a Hotmail or Yahoo account and keep your work life distinct from your private life?

Unless you have a phone, it's pretty hard to talk to Yahoo while you're at work, without every bit using the employer's network. They might not have a right to read your emails, but they have a right to monitor their own computers and their own wires. Neither the computer nor the network is personal.

Re:Something to think about?

[rockfistus]

Daddy hook you up with a good job? Fuck off.

Is anyone surprised by this?

[aes123]

Anyone with an employer provided phone who thinks that there's anything private on that phone is living in a fantasy land. How this got to the SUPREME COURT is completely beyond me.

Sounds fair to me.

[Hatta]

SMS is broadcast over the air unencrypted. There should be no expectation of privacy.

Re:Sounds fair to me.

[Shakrai]

SMS is broadcast over the air unencrypted.

-1 factually incorrect. All GSM transmissions are encrypted. CDMA transmissions may be encrypted but even without encryption are pretty hard to intercept -- they show up as noise unless you know the pseudo-noise sequences used to encode them.

Re:Sounds fair to me.

[Compholio]

SMS is broadcast over the air unencrypted. There should be no expectation of privacy.

You mean that you have to have special equipment to receive the message if you're not the intended recipient? I guess that means there should be no expectation of privacy with postal mail either, since with special equipment you can easily read other people's mail.

Re:Sounds fair to me.

[Hatta]

Thanks. I was mistaken. That makes the issue more complicated.

Re:Sounds fair to me.

[Shoe Puppet]

Yet it's "protected" by the fact you need either special equipment or access to the phone provider's servers to access it, apart from the criminal intent. The expectation of privacy should be comparable to a standard letter.

Re:Sounds fair to me.

[Shakrai]

Actually it really doesn't. Old fashioned cordless telephones were rarely encrypted but it was still a violation of Federal law to monitor them. It was also made illegal to sell scanners that were capable of tuning to the frequencies that they used.

Re:Sounds fair to me.

[butlerm]

I doubt SMS interception equipment is readily available to the general public, which means unauthorized third party interception, use, and disclosure is almost certainly illegal (at least in the United States) - cf. 18 USC 2511(2)(g).

Not that that would affect this case. The employer had implicit authorization. It also doesn't mean you shouldn't take the non-encryption into account when choosing what to send of course.

Re:Sounds fair to me.

[wolrahnaes]

He was most likely thinking of pagers, which are unencrypted and require no special equipment to monitor. If you have a radio receiver which can tune the appropriate frequencies (many ham radios and scanners readily available at retail stores) and a computer you can decode any pager messages sent on towers you can "hear".

That said, how are you making a logical leap from something being broadcast unencrypted over the air to opening mail? The snail-mail equivalent would be if a postcard was mailed to everyone in a zip code with instructions on the front saying for only John Doe at 123 Main Street to flip it over and read the back. Any expectation of privacy when using standard radio communications in the clear is absurd.

Re:Sounds fair to me.

[Bigjeff5]

It's a violation of federal law unless you own the cordless phone you're monitoring.

Same thing applies to cell phones.

Re:Sounds fair to me.

[jquirke]

All digital cellular phone standards in use today (GSM, UMTS, CDMA, etc) encrypt SMS messages and voice calls and it is almost always enabled.

That being said the strength of the various algorithms remains questionable (shameless plug).

But to say it is outright plaintext and broadcast is plain wrong.

I wonder...

[avatar4d]

Would this also lead to your own personal device that an employer pays a portion of the bill to also give them rights to view your records? I bought my device and have an account in my name, but my employer reimburses a portion of the bill to me since I am on call every other week and get pages sent via SMS to the device.

Re:I wonder...

[tilandal]

Common sense would say no as you own the device and your employer is compensating you for using your equipment but common sense isn't as common as it sounds so I suspect it would take a Supreme Court decision to answer!

Re:I wonder...

[Angst Badger]

Would this also lead to your own personal device that an employer pays a portion of the bill to also give them rights to view your records?

It certainly gives them a foot in the door. Personally, I'd rather eat the expense myself than risk privacy intrusions from some of the companies I've worked for. Alternatively, one might get a separate prepaid phone for work use so that one's personal phone is off-limits.

Re:I wonder...

[SydShamino]

Does the fact that your employer pays your salary mean they get to drive your car, live in your house, eat your food?

The fact that they designate a small portion of your salary as a phone stipend doesn't negate the fact that you own the device and can do with it what you please.

You ought to be perfectly free of employer's prying eyes, in the absence of a court order. (IANAL, etc.)

Your method is exactly what these government employees - or any employees for that matter - should have been doing in the first place.

Re:I wonder...

[rotide]

In this case I would assume that the device and service are _yours_ _alone_ unless you specifically signed away any rights to your privacy by accepting reimbursement.

If you never sign away your privacy then I would assume the default is that it is your phone, service and privacy. If it was work issued (like the article details) then work owns it regardless of what money you put into it.

Now I'm curious, what does the reimbursement form I use for work actually say.....

Re:I wonder...

[h4rr4r]

I would assume only for the reimbursed portion. So if they pay for 150 text messages out of your 500, they own 150 of the 500.

I am in the same situation.

Re:I wonder...

[TubeSteak]

Would this also lead to your own personal device that an employer pays a portion of the bill to also give them rights to view your records?

Allow me to simply the nature of the debate:
Whose name is on the bill?

If your name is on the bill, it's your record, not theirs.
If the company or government's name is on the bill, please
don't be sexting your wife, girlfriend, and another member of the SWAT team.

Re:I wonder...

[avatar4d]

Exactly. It seems like the beginning (probably more like a continuation given recent years) of a slippery slope. I would think that the person who "owns" the device/plan would be protected in this case, but who knows anymore.

Re:I wonder...

[Bigjeff5]

It's a violation of federal law to monitor another person's communications device. They are compensating you for using your, device to conduct their business. They get no claim over the phone or its records. What they could do is record any conversations on their devices, but that would not include any conversations between you and their customers.

It's the exact opposite of what is going on in this case, and the SCOTUS would strike it down in a heartbeat for the very same reasons they upheld it in this circumstance.

Re:I wonder...

[nurb432]

Technically, yes it gives them the right.

Credit Cards

[mikem01]

There were some useful pointers which I will definitely bear in mind for use next time. Thanks for sharing! Credit Cards

Obvious, in hindsight

[TiggertheMad]

It seems like there is an interesting business opening here: Selling multiple contracts for a single device. It shouldn't be too hard to write some software that allows users to switch context on a device to separate work and personal stuff. Get to it, you money hungry corporate sharks!

Re:Obvious, in hindsight

[solafide]

The Nokia e63 already has a mode-switch much like this.

Re:Obvious, in hindsight

[AndrewNeo]

Too late!

Re:Obvious, in hindsight

[mea37]

That might not solve all the problems, though. If the device is company-provided, then they may still have a claim to data it physically captures (contact lists, call/message history, etc.) even though the device was interacting with an unrelated network under an unrelated contract some of the time.

I suppose if your employer gave you the option that they'd just provide a SIM card and you could put it in a device of your choosing (which could be one of the dual-SIM devices others have pointed out), then that might be a solution.

Valid ruling

[gurps_npc]

I am a big fan of privacy, but if you are a government employee using a governmen provided device to communicate then the government has the right to examine that communication, if only to discover whether or not it is is official business (which they pay for) or personal (which you pay for). In fact that was exactly how they discovered the data.

Not so simple

[CheeseTroll]

My first reaction was like most here - it's an employer-provided device, so why would you expect privacy? However, the Electronic Communications Privacy Act says that while employers have the right to monitor employee's phone conversations, they must stop if/when they realize that the conversation is personal, not business.

http://www.privacyrights.org/fs/fs7-work.htm#2a

So this is a mobile phone, not a landline, and it's texting not talking, which just complicates an already murky law.

Re:Not so simple

[N0Man74]

Good point. I don't understand why people make the distinction between them being government employees or not. I don't think it should matter. Both employees in the public and private sector really should be able to expect the same level (or lack) of privacy from their employer.

Re:Not so simple

[Anonymous Coward]

Yes so simple.

Device is paid for by the government and provided to the government employee by the government with the intent that it is used for government business by the government employee. As it is a communication device it could be considered to be a part of a government communication network while it is operational and communicating and therefore subject to government monitoring.

Re:Not so simple

[aceboomblain]

When its a government provided device, it means it is a taxpayer provided device. It is essential to our republic that we can be sure they are conducting proper business, which means eventually we can file FOIA requests for those messages; or subpoena them when there is evidence of a crime. For example, when the former Mayor of Detroit, Kwame Kilpatrick had a wild party at the Mayor's mansion, complete with strippers/hookers, where the former Mayor's wife pistol whipped one of the dancers; which resulted in some 911 calls; which resulted in the former Mayor firing some police commanders who were doing their job trying to investigate. Text messages between the former Mayor and his chief of staff (a former college girlfriend) revealed that he fired them to stop the investigation. Without being able to get access to those messages (which were clearly personal because they also revealed the affair he was having with his chief of staff), he would probably still be the Mayor of Detroit instead of in prison where he belongs.

Re:Not so simple

[butlerm]

However, the Electronic Communications Privacy Act says that while employers have the right to monitor employee's phone conversations, they must stop if/when they realize that the conversation is personal, not business.

Strictly speaking, The ECPA says no such thing. That was a determination of the Eleventh Circuit in Watkins v. Berry (1983), interpreting the phrase "ordinary course of business". Seems like a reasonable rule to me.

Re:Not so simple

[CheeseTroll]

Then you're talking about getting a subpoena, which will always legally trump privacy concerns, whether employer-related or not.

Re:Not so simple

[LandoCalrizzian]

Regardless of what your views are on individual rights and freedom of speech, no one should expect any privacy while using a device that is owned by your employer whether it's public or private sector. Any government agency worth half a damn or private company who can't afford to bury you in lawyer fees will broadcast loud and clear that you should have no expectations of privacy when using equipment they own.

I agree that they shouldn't be able to read your emails or tap your phone without just cause. Everyone should know that just cause is easy to justify privately (low productivity numbers b/c of too much Slashdot) and slightly harder to justify publicly (US Attorney firings).

It's your employer not your parent.

The suit against the service provider succeeded??

[dissipative_struct]

From the article:

"The court in December refused to hear a related appeal from Arch Wireless, now a unit of USA Mobility Inc., the nation’s largest provider of paging services. The 9th Circuit court said the company violated a federal electronic-privacy law by providing the transcript without seeking Quon’s permission".

So the Supreme Court ruled that the department had the legal authority to review the pager messages, but the 9th Circuit says the service provider violated a federal law in turning over the records without Quon's permission?

Gray areas

[KingSkippus]

The problem is that sometimes there are gray areas.

Where I used to work, they provided us with BlackBerries. However, they also had a plan where you paid the company $15 per month, and you could use it as your personal phone as well. Unlimited minutes, unlimited data, it seemed like a pretty good deal. Even if they monitored text messages and such, it's not like my messages were racy or too terribly private.

Then they locked out Gmail. Oh, and they blocked MMS messages. And prevented me from installing apps on it.

At that point, I bought an iPhone. Yes, I'm paying a hell of a lot more than $15 per month for it, and I no longer get unlimited minutes. Still, my freedom to do whatever I want with the device and knowing that Big Brother isn't watching me* is worth the extra money.

*Well, at least one less Big Brother. Uncle Steve still wants to keep me safe from myself. :-/

Pro tip:

[Anonymous Coward]

It's the company that sets the company policy for company equipment. This is no different.

Confused

[jmactacular]

I'm confused by what the EFF just twittered. They seem to think this is a positive ruling, which is at odds with this slashdot post. "Today's S. Ct. decision in Quon v Ontario at http://eff.org/r.4mq (pdf) assumes w/o deciding that 4th am protects privacy of txt msgs (yay!)"

Re:Confused

[mr_matticus]

They seem to think this is a positive ruling, which is at odds with this slashdot post.

It's not at odds. It only seems that way:

"Today's S. Ct. decision in Quon v Ontario at http://eff.org/r.4mq (pdf) assumes w/o deciding that 4th am protects privacy of txt msgs (yay!)"

That's completely accurate. The opinion holds that it is assumed but not decided that Quon had a reasonable expectation of privacy in the text messages (see e.g. III-A [p. 9]).

A REOP doesn't mean you can't be searched. It means that searches have to comply with the Fourth Amendment. This search did comply, given the workplace exception, pp. 15-16, and therefore the city is entitled to conduct such audits of the equipment it pays for.

Re:Confused

[butlerm]

GP: "Today's S. Ct. decision in Quon v Ontario at http://eff.org/r.4mq (pdf) assumes w/o deciding that 4th am protects privacy of txt msgs (yay!)"

No, they didn't. The 4th amendment only applies to the actions of the government, including (potentially) government employers. It has no direct relevance to the actions of private employers or others. There are separate laws that deal with the latter (the ECPA and SCA in this case), the Constitution has nothing to do with it.

Not only that, the Court held today and has previously held that government employers (which the 4th amendment does apply to) have wide exceptions to the 4th amendment in their role in that capacity.

Re:Confused

[mr_matticus]

No, they didn't. The 4th amendment only applies to the actions of the government, including (potentially) government employers.

Not quite. The textual restrictions of the Fourth Amendment only apply to the actions of the state, but the concept of a reasonable expectation of privacy (which is considered part of Fourth Amendment jurisprudence) is a status that applies to everyone, everywhere.

The "Fourth Amendment Right to Privacy" as it is commonly known isn't found in the text itself. Instead, the early history of the Fourth Amendment informed a longstanding presumption in this country that there is a right to privacy in some kinds of property, persons, actions, speech, and information (otherwise there would be no need to have a Fourth Amendment). But there are many situations in which there is no such expectation, and the Court easily could have declared employer-owned or funded communications equipment to fall into that category.

By assuming that there is a REOP here, it does indeed protect citizens from private action as well--if there is no REOP, then you have no privacy interest that would be actionable under the ECPA or SCA and the employer, public or private, wouldn't need to argue an exception; it would simply be automatically entitled to monitor. That's a worse result for what should be obvious reasons.

Re:Confused

[Anonymous Coward]

Thanks for the link. I found this section particularly interesting:

"Although the Computer Policy did not cover text messages by its explicit terms, the City made clear to employees, including Quon, that the City would treat text messages the same way as it treated e-mails. At an April 18, 2002, staff meeting at which Quon was present, Lieutenant Steven Duke, the OPD officer responsible for the City’scontract with Arch Wireless, told officers that messages sent on the pagers “are considered e-mail messages. This means that [text] messages would fall under the City’spolicy as public information and [would be] eligible for auditing.” App. 30. Duke’s comments were put in writing in a memorandum sent on April 29, 2002, by Chief Scharf to Quon and other City personnel."

Re:Confused

[butlerm]

the concept of a reasonable expectation of privacy (which is considered part of Fourth Amendment jurisprudence) is a status that applies to everyone, everywhere.

I am aware that the "reasonable expectation of privacy" applies to cases that properly fall under the Fourth Amendment, as well cases that properly fall under statutory privacy laws.

However, the idea that the Fourth Amendment applies to any case that does not involve the government is something that that you are going to have to provide a citation for. Even if the Supreme Court has so held (which I highly doubt), it is unquestionable that their decision in that regard would be wrong.

Re:Confused

[mr_matticus]

However, the idea that the Fourth Amendment applies to any case that does not involve the government is something that that you are going to have to provide a citation for.

No, it's not, because it's not an assertion that has been made. Only state action can violate the Fourth Amendment. That is not to say that Fourth Amendment jurisprudence only applies against the government, though, because as you recognize, REOP (a legal standard derived exclusively from Fourth Amendment cases) is the basis of all privacy torts, at common law and under statutory causes of action.

Here, the Court assumed a REOP in the messages; the Fourth Amendment thus protects the text messages. The Court directly stated that it assumed (but not decide) that citizens have a reasonable expectation of privacy in the messages in question. This reaches far beyond government searches, as Scalia's concurrence hints.

Fourth Amendment protection is not a binary state; possession of a reasonable expectation of privacy is not a bar against searching. The assumed REOP means that individuals cannot be searched in this manner without a warrant; government employees do not automatically lose their Fourth Amendment rights per O'Connor. As the Court held in Quon today:

First, Quon had a reasonable expectation of privacy in the text messages sent on the pager provided to him by the City; second, petitioners' review of the transcript constituted a search within the meaning of the Fourth Amendment; and third, 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.

The short version of the workplace exception requires a "noninvestigatory, work-related purpos[e]" or for the "investigatio[n] of work-related misconduct," a government employer's warrantless search is reasonable if it is "'justified at its inception'" and if "'the measures adopted are reasonably related to the objectives of the search and not excessively intrusive'".

All of those steps would be entirely unnecessary if the Court were to have held instead that there is no REOP in text messages, which they could have done, with incredible consequences. The narrow holding is a recognition that there is indeed a REOP here, which affects not only criminal searches under the Fourth Amendment, but everything using the Fourth Amendment REOP standard as a basis, which includes essentially all privacy cases, regardless of the defendant.

In other words, the Fourth Amendment itself can be used textually against the state alone, but to say that Fourth Amendment caselaw doesn't affect private actors is not accurate. REOP is a Fourth Amendment concept, applied far outside Fourth Amendment textual violations.

Re:Confused

[butlerm]

Here, the Court assumed a REOP in the messages; the Fourth Amendment thus protects the text messages.

The Supreme Court decision was about government employers. Hence the applicability of the Fourth Amendment. Courts and legislatures may adopt a reasonable expectation of privacy standard in other circumstances, but if a government actor is not involved, that is at best inspired by the Fourth Amendment, not dictated by it. The rest of your comments I agree with.

Re:Confused

[mr_matticus]

The Supreme Court decision was about government employers.

No. Government employees are not a special class with regard to the Fourth Amendment, per O'Connor. This case, inasmuch as REOP is concerned, is about everyone, everywhere. United States citizens, it is stated, are assumed to have an expectation of privacy in their SMS messages.

The EFF's fear was that the Supreme Court would rule SMS messages categorically as not covered by REOP (like a postcard, a Twitter account, possibly a Facebook profile, etc.), which would have had grave consequences for everyone--the lack of a privacy interest in the messages would mean that you would have to commit a separate crime or tort in order to be actionable. Any employer, public or private, would be able to search the text messages transmitted to or from a device they pay for, without a signed waiver, without notice, and without any tort liability.

Courts and legislatures may adopt a reasonable expectation of privacy standard in other circumstances, but if a government actor is not involved, that is at best inspired by the Fourth Amendment, not dictated by it.

You still misunderstand. The privacy expectation standard is the Fourth Amendment standard in all cases, civil and criminal, state actor and non-state actor. Thus Fourth Amendment jurisprudence directly affects all privacy law. A ruling that REOP does not exist in a particular circumstance renders privacy torts unactionable.

There is no privacy standard in the text of the Fourth Amendment itself--the textual "dictating" anything has never been relevant here. The privacy standard is a product of caselaw, and the Fourth Amendment REOP standard is the standard for privacy interests across the board.

Re:Confused

[butlerm]

No. Government employees are not a special class with regard to the Fourth Amendment, per O'Connor.

The Court held no such thing. This is what it held in O'Connor v. Ortega (1987):

The strictures of the Fourth Amendment, applied to the States through the Fourteenth Amendment, have been applied to the conduct of governmental officials in various civil activities...Thus, we have held in the past that the Fourth Amendment governs the conduct of school officials, see ibid., building inspectors, [OSHA inspectors, etc]...Searches and seizures by government employers or supervisors of the private property of their employees, therefore, are subject to the restraints of the Fourth Amendment.

See anything in there about private employers being governed by the restraints of the Fourth Amendment? Nothing in the entire decision applies to private employers. Now you have an interesting legal theory, but unless you can provide a Supreme Court citation indicating that the Fourth Amendment constrains private actions, I shall continue happily in the assurance that there is no such precedent.

Re:Confused

[butlerm]

By the way, this is what the New Jersey Supreme Court had to say on the topic, in Stengart v. Loving Care Agency (2010):

Preliminarily, we note that the reasonable-expectation-of-privacy standard used by the parties derives from the common law and the Search and Seizure Clauses of both the Fourth Amendment and Article I, paragraph 7 of the New Jersey Constitution. The latter sources do not apply in this case, which involves conduct by private parties only

The latter sources do not apply in this case? Didn't the Supreme Court of New Jersey get the memo?

Re:Confused

[mr_matticus]

The Court held no such thing. This is what it held in O'Connor v. Ortega (1987):

I suggest you read more carefully:

"Individuals do not lose Fourth Amendment rights merely because they work for the government instead of a private employer." 480 U. S., at 717

See anything in there about private employers being governed by the restraints of the Fourth Amendment?

For the last time, the restrictions of the Fourth Amendment apply only to state actors. Quit with the strawmen.

The latter sources do not apply in this case? Didn't the Supreme Court of New Jersey get the memo?

They did, but you didn't. Look at their citations for exploration of the privacy expectation:

"As is true in Fourth Amendment cases, the reasonableness of a claim for intrusion on seclusion has both a subjective and objective component. See State v. Sloane, 193 N.J. 423, 434, 939 A.2d 796 (2008) (analyzing Fourth Amendment); In re Asia Global Crossing, Ltd., 322 B.R. 247, 257 (Bankr.S.D.N.Y.2005) (analyzing common law tort). Moreover, whether an employee has a reasonable expectation of privacy in her particular work setting "must be addressed on a case-by-case basis." O'Connor v. Ortega, 480 U.S. 709, 718, 107 S.Ct. 1492, 1498, 94 L.Ed.2d 714, 723 (1987) (plurality opinion) (reviewing public sector employment)." 201 N.J. 300, 317.

Those are Fourth Amendment cases, as I've been saying all along. You are continuing, whether out of ignorance or disingenuity, to conflate a Fourth Amendment cause of action (state actors only) with the influence of Fourth Amendment jurisprudence (all cases and all actors). When a case involves a privacy tort, one of the elements of that tort is that the plaintiff had a privacy expectation. Establishing a privacy interest always loops back to Fourth Amendment cases, and the court is then careful to say that the Fourth Amendment's restrictions on action do not apply.

It is plainly clear that you are neither a lawyer nor in possession of legal training, so your charge against the EFF and continued insistence on your nonexistent correctness is quite the show of hubris.

Re:Confused

[butlerm]

"Individuals do not lose Fourth Amendment rights merely because they work for the government instead of a private employer." 480 U. S., at 717

Of course they don't. Those Fourth Amendment rights have nothing to do with the actions of the private employer though, but rather the actions of a government employer, and you have yet to cite anything to demonstrate otherwise.

For the last time, the restrictions of the Fourth Amendment apply only to state actors. Quit with the strawmen.

I guess we have no disagreement then.

They did, but you didn't. Look at their citations for exploration of the privacy expectation:

The statement you quote starts out "As is true in Fourth Amendment cases, the reasonableness of a claim for intrusion on seclusion has both a subjective and objective component".

In other words, this is not a Fourth Amendment case, it is just similar to one, in this respect.

It is plainly clear that you are neither a lawyer nor in possession of legal training, so your charge against the EFF and continued insistence on your nonexistent correctness is quite the show of hubris.

Ditto.

Re:Confused

[mr_matticus]

Those Fourth Amendment rights have nothing to do with the actions of the private employer though, but rather the actions of a government employer, and you have yet to cite anything to demonstrate otherwise.

For the last time, that's not the discussion. No one is arguing that point.

You said:"GP: "Today's S. Ct. decision in Quon v Ontario at http://eff.org/r.4mq [eff.org] (pdf) assumes w/o deciding that 4th am protects privacy of txt msgs (yay!)"

No, they didn't."

That is not accurate on two fronts: (1) they did say exactly that, and you've been given the citation, which does matter for future Fourth Amendment causes of action, and (2) as also shown to you from your own examples, the REOP standard is adopted outside of Fourth Amendment cases as the basis of tort actions, meaning that Fourth Amendment decisions affect far more than Fourth Amendment cases. You're even aware of this fact, because you have previously stated, "I am aware that the "reasonable expectation of privacy" applies to cases that properly fall under the Fourth Amendment, as well cases that properly fall under statutory privacy laws."

Thus a REOP decision in a Fourth Amendment case properly

The statement you quote starts out "As is true in Fourth Amendment cases, the reasonableness of a claim for intrusion on seclusion has both a subjective and objective component".

In other words, this is not a Fourth Amendment case, it is just similar to one, in this respect.

No. In other words, the standard is the Fourth Amendment standard, as set forth by the exploration in the case you cited. You are, despite having it pointed out to you numerous times, continuing to conflate Fourth Amendment causes of action with areas of law relying on Fourth Amendment jurisprudence.

You've yet to demonstrate that you even understand what the issue is here. It seems unlikely that you ever will.

Re:Confused

[butlerm]

For the last time, that's not the discussion. No one is arguing that point.

Glad to hear it.

GP: "Today's S. Ct. decision in Quon v Ontario at http://eff.org/r.4mq [eff.org] (pdf) assumes w/o deciding that 4th am protects privacy of txt msgs (yay!)"
Me: "No, they didn't"
You: "That is not accurate on two fronts: (1) they did say exactly that, and you've been given the citation, which does matter for future Fourth Amendment causes of action"

I agree they did indicate that the 4th amendment applies to government employer review of text messages by government employees using government equipment. They most certainly did not say that the 4th amendment applies to the private employer review of the text messages of private employees using employer equipment. That question wasn't even before the court.

The court did not assume that "that the 4th amendment protects privacy of text messages" private intrusion in general, it assumed that the 4th amendment protects privacy of text messages where a government employer or other state actor is involved, subject to typical constraints and exceptions.

Now perhaps the person originally quoted understood that, and thinks that it is an enormous victory for fourth amendment jurisprudence that text messages are assumed to be protected in any circumstance, but that is not the impression I got.

No. In other words, the standard is the Fourth Amendment standard, as set forth by the exploration in the case you cited. You are, despite having it pointed out to you numerous times, continuing to conflate Fourth Amendment causes of action with areas of law relying on Fourth Amendment jurisprudence

I have no doubt that the Fourth Amendment standard has great influence over the standards adopted by courts in other circumstances - common law, state constitutional law, etc. The point is the "Fourth Amendment" standard is not binding on courts making decisions in cases not governed by the fourth amendment, except to the degree (and only to the degree) it has been adopted as part of the pertinent common law governing a non Fourth Amendment case.

That is why it is misleading to call cases pertaining to private employers "Fourth Amendment cases", because they clearly are not. The NJ Supreme Court said as much: "As is true in Fourth Amendment cases,..." Whatever the NJ court was deciding, and whatever inspiration they drew from federal Fourth Amendment case law, they were not deciding a "Fourth Amendment case", but rather a case governed by the common law and statutes of the state of New Jersey.

Re:Confused

[mr_matticus]

I agree they did indicate that the 4th amendment applies to government employer review of text messages by government employees using government equipment.

No.

They indicated that text messages are entitled to a reasonable expectation of privacy. A REOP is a status against the world (not any specific party, be it "employer" or "government employer", and not contingent on who pays the bill for the service). The statement is a finding that Quon enjoyed an expectation of privacy in the messages, regardless of the equipment, and regardless of the identity of the employer. Neither of those is a factor in the current case, because the court assumed there was an expectation of privacy, which negates your entire point.

There is no special class for the conditions you enumerate. The whole reason the EFF filed a letter in this case was because of the far-reaching implications the decision would have; they are pleased with the result. The point you are commenting about is about the expectation of privacy and not about the outcome of the case (the reasonableness of the search), because they are two different things.

The court did not assume that "that the 4th amendment protects privacy of text messages" private intrusion in general

Sigh. Yes, that's exactly what they did. Finding that a REOP exists automatically triggers the protections of the Fourth Amendment where applicable. The alternative, finding that there is no REOP, means that a "search" has not occurred that would place any restrictions on the government's actions. Without a REOP, you don't need to argue an exception or a factual distinction--no privacy interest means no search has occurred.

Text messages are protected by a reasonable expectation of privacy by this assumption, whether privately owned or employer-owned, and whether that employer is a government entity or not.

The only way for the case to have Fourth Amendment implications is if a REOP exists. By assuming that it does, the Court was able to make its decision on the narrowest possible grounds:

1. Quon had a REOP in the text messages
2. Persons entitled to a REOP may not be searched without a warrant or an established exception
3. The police department had no warrant, therefore the burden shifts to them to establish an exception
4. The workplace exception allows the search without a warrant because (a) the equipment was paid for by them and (b) the search was for an acceptable, limited purpose.

The nature of the equipment and the employer only engages at step 4. The restrictions on government action (textual Fourth Amendment) only engages at step two. No REOP = no search = no restriction on government action. At the same time, no REOP = no privacy interest under tort law (which applies to private parties as well as the government).

By finding a REOP, you have a basis for action under tort law against any party, and you have Fourth Amendment rights against government searches in criminal actions.

That is why it is misleading to call cases pertaining to private employers "Fourth Amendment cases", because they clearly are not.

And nobody does. How you can be this dense is truly a mystery.

Re:Confused

[butlerm]

They indicated that text messages are entitled to a reasonable expectation of privacy.

So? That doesn't mean that the fourth amendment or (strictly speaking) "a fourth amendment standard" applies in any way shape or form to all cases involving text messages.

Other than that, I don't see any disagreement. So as this argument is getting rather tedious, perhaps we should quit.

Re:Confused

[mr_matticus]

Jesus Christ. The argument has been tedious from the beginning. The EFF statement is correct and accurate. Your refusal to understand why is what is tedious.

The Fourth Amendment says that no person shall be subjected to unreasonable search or seizure without a warrant. This is analyzed in three stages, as the Quon opinion sets forth in order based on the historical evolution of doctrine in this area.

The first question was, when has there been a search? The Court answered this question. The standard for whether a search or seizure has occurred is based on whether the person enjoys a reasonable expectation of privacy in the relevant material. This is the only standard, and it does not matter who is doing the searching; your boyfriend, your private sector employer, or a government entity, either law enforcement or a government employer.

[This is the "Fourth Amendment right to privacy"--it does not actually exist in the text. It is solely a creation of caselaw, and it is the basis of all American privacy actions. If you have no REOP, you have no cause of action at tort, at common law, or under the Fourth Amendment because the material is considered non-private. The REOP standard developed by necessity as the earliest part of Fourth Amendment jurisprudence, and it is used as the basis for all privacy violations in the United States, committed by all actors under all laws. When a private-actor privacy case comes before a court, as you have discovered for yourself, the first question is, "is there a REOP?" The court looks to the applicable Fourth Amendment cases to answer that (again, as you have seen), since that is the provenance of the standard. The reason for starting here is obvious: if you do not have a privacy expectation at the broadest measure, you cannot have one on a narrower field. Thus, if there is no REOP, the case is dismissed outright, because the material in question was not "private". If there is a REOP, the case proceeds to the particular restrictions applicable to that actor on the narrower grounds applicable under statutory or common law rules.

It is the REOP finding the EFF in part celebrates, because it strongly suggests that the Court believes that privacy interest exists in text messages, and a REOP finding applies to everyone, everywhere as the most fundamental dividing line that exists.]

Having established what is public and what is a search into private affairs, the next question was, assuming a search has occurred, who needs a warrant to conduct a search? The Fourth Amendment restricts the actions of the federal government. The Fourteenth Amendment, along with several key SCOTUS decisions on incorporation, extends that restriction to state and local governments. This is where the textual restrictions of the amendment come into play. Private parties cannot be sued under the Fourth Amendment, because the warrant requirement does not apply to them; the cause of action in such cases lies in tort or in statutory provisions.

In Quon, because the party conducting the search was a government entity, and because the Court assumed a REOP existed, the Fourth Amendment is triggered. The city needed a warrant. It didn't have one; the search therefore is presumably unconstitutional. This is the second part the EFF is celebrating, because it places a burden on government agencies to defend their actions, and creates a default presumption that a warrantless search is unlawful. The full set of Fourth Amendment protections apply.

But wait! The amendment protects against unreasonable searches, not all searches. Hench, the third question, what is an unreasonable search? The answer of course is spelled out in the numerous warrant exceptions, including the workplace exception argued by the city.

Here, because the service was paid for by the city, and because the purpose of the search was narrowly

Re:Confused

[butlerm]

You keep trying to argue any number of points I haven't the slightest disagreement with. My only substantive disagreement is over nomenclature, and it is not worth further debate.

All employees?

[sznupi]

Such rule is nice in principle - gov employee goes basically to the highest level after all.

Yeah, yeah, "don't hold your breath..."

Thanks to politicians like this...

[mayko]

After someone like Kwame Kilpatrick (former mayor of Detroit) exchanged 14,000 text messages with his chief of staff (both married to other people), most of which were related to their sexual affair with one another and others which were about illegally firing another government employee and I believe a bribery scandal (this has been local news here for a while), I'm not surprised they are finally doing this.

What I'd really like to know, is how the hell someone could send 14k text messages between September/October 2002 and April/May 2003. All the illegal and corrupt stuff aside... If that time period is accurate that means they were exchanging over 50 text messages a day... what the fuck.

Re:Thanks to politicians like this...

[Anonymous Coward]

Really? 50 a day is like 10 an hour for half a workday. In fifteen minutes, I can send almost twenty text messages WHILE working.

I often go into 200-350 a day. Though I guess that's what happens when you maintain GSM equipment.

Re:Thanks to politicians like this...

[h4rr4r]

How?
WTF are you possibly talking about?
Have you not heard of email?

Re:Thanks to politicians like this...

[Message]

I work in an open office, it is easier for me to send a text than call someone since you never know who in the office could be eavesdropping. Before that I worked in an area that didnt allow my cellphone in the office, google voice offered online texting. Not all of my friends set around a computer all day monitoring their email. And most work place email is definitely monitored.

Re:Thanks to politicians like this...

[planagan]

Based off the women who know my number, it's quite easy to get up to 50 texts/day. (That's why I only give my personal phone number.)

Re:Thanks to politicians like this...

[JediLow]

Try spending 5 minutes with a high school kid; you'll see 50 text messages in that time. (It's scary... this current generation communicated almost entirely via texts and Facebook)

Re:Thanks to politicians like this...

[h4rr4r]

You could try working during work.

Re:Thanks to politicians like this...

[Anonymous Coward]

If you think 50/day is a lot, you must not have Teenagers.

Re:Thanks to politicians like this...

[DrogMan]

I think you'll find that the average UK teenager can send that in an hour... At least it seems like it.

A quick google finds this 50 million texts an hour sent in the UK:

Re:Thanks to politicians like this...

[mayko]

I agree with you there, my girlfriend's younger brother is still in high school and it amazes me that his friends and him have so little interaction, even when they are sitting in the same room; phones always in hand.

My disgust isn't entirely the volume of text messages... it's more that an almost 40 year old man who should be busy being Mayor (albeit one of the worst, and in the worst city in the US) doesn't need to be averaging over 50 text messages a day to one person. I don't even want to know how many he was sending a day to the rest of his phone book.

Re:Thanks to politicians like this...

[Anonymous Coward]

Maybe your math is wrong because when I figure out how many _each one_ of them sent a day on average, I get a number closer to 11. Combined for 22... 11 isn't a hugely "what the fuck" number.

Re:Thanks to politicians like this...

[Anonymous Coward]

You could try working during work.

Says the person reading /.

Simple solution

[h4rr4r]

Use your own device and have your employer re-imburse you for a portion of the bill.

Good

[davmoo]

This is exactly how it should be. And it should extend to private employers as well as government. We live in an age where companies can be, and routinely are, punished for employees using company equipment for sexual harassment, etc. If I can be held responsible for what my employees do with my equipment, then I'm going to monitor its usage and I don't give a damn what employees think of it. Period.

If you want privacy, use your own phone.

kdawson is using timothy's account

[corbettw]

That's the only conclusion I can come to based on the absolute horribleness of the summary. The fact is, these devices are owned by the employer in question. So going from the principle that employers can already monitor telephone conversations on equipment they own and monitor email communications on equipment they own, there is absolutely no legal justification for them to be prevented from monitoring texts on equipment they own.

Want privacy from your employer? Go spend $40 a month and get your own cell phone.

Re:kdawson is using timothy's account

[butlerm]

there is absolutely no legal justification for them to be prevented from monitoring texts on equipment they own.

Under current law, as long as they do it without the service provider intercepting and providing them a copy, yes. The service provider cannot legally do the latter (cf. Quon. vs Arch Wireless, Ninth Circuit (2008), which still stands).

An employer is generally able to do it themselves on equipment they own (which would require custom software in this case) of course.

Re:The suit against the service provider succeeded

[h4rr4r]

Both can happen, one way would be for the search to be legit based on an employer exception but since the turnover did not confirm who they were giving it too his 4th amendment rights may have been violated. Not saying that is what happened just that these things are not necessarily in contradiction.

Next comes banning of personal devices

[c0d3g33k]

Watch for the other shoe to drop. Once this precedent is firmly established in the public and private sectors, the only remaining step is to ban personal devices so there is no possible way to communicate that isn't subject to search, surveillance or other forms of monitoring. There are already workplaces that ban personal laptops from accessing the network, or ban phones with cameras (good luck finding such a device these days), quite often for good reason (any defense-related job, for example, or jobs that involve sensitive data like medical information).

Personally, I don't think such rulings should be allowed to stand unless the law clearly defines reasonable conditions under which personal communication not subject to unlimited surveillance are permitted. I'm cynical enough to think that this will never happen. Let's hope I'm wrong.

Re:Next comes banning of personal devices

[h4rr4r]

They make stickers for your camera issue.

Re:Next comes banning of personal devices

[c0d3g33k]

At a certain nearby defense contractor they require the lens to be Sharpied. Better to have a camera free phone than ruin it.

In general, though, I think you missed the larger point in order to point out a triviality. What value are personal and presumably private devices if no reasonable conditions exist so that personal communications can remain private?

Re:Simple(r)

[koinu]

Leave the work phone at the office and carry your own private outside. No bothering calls at home and the people at the company can analyze all your text messages on your office phone without any ideological problems. Classic win-win situation. :)

There's No App For That?

[Anonymous Coward]

The sad thing is you can't even get an iPhone app that ROT-13's your text messages for you. You know, cuz Adobe owns ROT-13.

Forbid personal use...

[N0Man74]

I think the policy should be that employers (public or private) should only be allowed to review phone records used an employer issued phone if the policy is that it can't be used for personal use.

If they explicitly allow (or encourage) use of these company resources for personal use, then they should be restricted from viewing personal use.

Encouraging and allowing personal use, and then being able to view it is dangerous, can be easily abused, and is like setting up traps for people. In the end, everyone will probably say or do something stupid on their phones in their personal use, so if you want to rake any random person over the coals you can likely find *something* that is at least somewhat objectionable on any random phone search.

Re:Forbid personal use...

[butlerm]

If they explicitly allow (or encourage) use of these company resources for personal use, then they should be restricted from viewing personal use

A few points:

(1) Service providers cannot legally disclose the contents of text messages to employers without the originators or addressees permission. The 9th Circuit decision stands.

(2) The employee got in trouble for messages he sent while on duty. The department avoided (as much as possible) evaluating messages sent when he was not.

(3) The employee's case against his employer turned in part on his written acknowledgement that all "network activity" may be monitored.

(4) Congress could pass a law as you suggest, however the problem is that the technical measures for the prior determination of "personal" vs. "work" use do not yet exist, and Congress would have to mandate that all future devices include them. Something like a button on the phone or email client that indicates that this message is a personal one, and an employer must not access the contents if use of that button is allowed.

Since citizens are technically the employer. . .

[kimvette]

Since citizens are technically the employer. . .

I would like to review ALL of Obama's texts. Now.

Re:Since citizens are technically the employer. .

[Ingolfke]

Jay-Z has Obama on the text.

Re:The suit against the service provider succeeded

[butlerm]

So the Supreme Court ruled that the department had the legal authority to review the pager messages, but the 9th Circuit says the service provider violated a federal law in turning over the records without Quon's permission?

The legal authority to review them if they have a copy of them, yes. The department cannot force the provider to violate the law, however.

monkeys like crack too. it's comparable to tv...

[Anonymous Coward]

as in fake. we have no secrets (thanks carly). 'they' have plenty & increasing.

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"I think the bottom line is, what kind of a world do you want to leave for your children," Andrew Smith, a professor in the Arizona State University School of Life Sciences, said in a telephone interview. "How impoverished we would be if we lost 25 percent of the world's mammals," said Smith, one of more than 100 co-authors of the report. "Within our lifetime hundreds of species could be lost as a result of our own actions, a frightening sign of what is happening to the ecosystems where they live," added Julia Marton-Lefevre, IUCN director general. "We must now set clear targets for the future to reverse this trend to ensure that our enduring legacy is not to wipe out many of our closest relatives."--

"The wealth of the universe is for me. Every thing is explicable and practical for me .... I am defeated all the time; yet to victory I am born." --emerson

no need to confuse 'religion' with being a spiritual being. our soul purpose here is to care for one another. failing that, we're simply passing through (excess baggage) being distracted/consumed by the guaranteed to fail illusionary trappings of man'kind'. & recently (about 10,000 years ago) it was determined that hoarding & excess by a few, resulted in negative consequences for all.

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"If my people, which are called by my name, shall humble themselves, and pray, and seek my face, and turn from their wicked ways; then will I hear from heaven, and will forgive their sin, and will heal their land." )one does not need to agree whois in charge to grasp the notion that there may be some assistance available to us(

boeing, boeing, gone.

And some people wondered...

[GlennC]

...why I decided to keep my personal cell phone. I'm not the only one, I know.

Feel free to mod "Redundant".

are you sure?

[Chirs]

My employer claims the right to monitor anything I do with my work computer or on the work network...which is fine, it is their equipment after all.

Presumably that would include me accessing my private Hotmail/Yahoo account from the work computer.

Re:are you sure?

[corbettw]

I'll admit that might be a gray area since you have to use their network and proxies. But that monitoring only involves actual snooping on the traffic going over their network. They can't log into your mailbox whenever they feel like it so it's a very different circumstance that what happened in this case.

Re:are you sure?

[Lehk228]

Presumably that would include me accessing my private Hotmail/Yahoo account from the work computer.

well then don't do that.

Re:are you sure?

[karcirate]

Actually I recall a court case where someone's boss stole her email pw via her work computer, and used her personal emails against her. She sued and won. So... using personal email at work *might* be OK... just do yourself a favor and use https.

not necessarily

[Chirs]

I pay taxes, so I'd like to see where my money is going. That may mean that a public employee has less privacy.

A publicly traded company could decide to do something similar so their shareholders can see where the money is going.

A privately held company could decide to not monitor their employees since they're not accountable to any shareholders.

Re:not necessarily

[CheeseTroll]

There's a difference between transparency in government and stalking individual government employees. Granted, it's not always a clear division between the two, but you've gotta recognize that most govt' employees are just regular people doing a job, not politicians who crave public attention.

(And no, I don't work for any gov't.)

Re:not necessarily

[N0Man74]

As a paying customer of Geico, I am paying the salaries of Geico employees! I demand to see where my money is going. It is my right.

My taxes help pay for military intelligence. By this token, there should not be any military secrets at all. Top Secret access should be opened to all tax paying citizens, because we paid for them.

Re:Since citizens are technically the employer. .

[JediLow]

Put in a FIOA request...

The reason and the cure

[Caerdwyn]

The bottom line is this: as long as an EMPLOYER can be sued for the conduct of an EMPLOYEE in relation to a job (and use of employer-provided equipment counts), the employer for its own protection must have the right to take steps to mitigate that risk.

There is also a strange idea that an employee has a right to use employer-provided equipment and services for personal use. That's a myth. If the employer is kind enough to allow you to use company equipment and services for personal use (such as me posting this from work), that's a courtesy and a kindness, not a right, and if there are self-defense strings attached like monitoring, that's the employer's prerogative. Don't like it? Don't use it. I could be doing this from my smartphone or from home.

Employers wouldn't do this if they didn't have to. Monitoring costs time and money. Monitoring happens in response to abuses by employees which have proven to be very costly to the employer. You can lay the blame for this at the feet of employees who have gotten their employers dragged into court and fined millions, resulting in the employer having to fire the innocent as well as the guilty to make up for the cost of the lawsuit. Or, in extreme cases, go out of business altogether... all because Charlie Assgrab surfed porn and Suzy StickUpHerAss saw it and told the law firm of Wi, Fukkem & Howe.

The solution? Get rid of these terrible tort laws that allow employers to be sued for actions of an employee that were clearly not ordered by the employer. Someone grabbed your ass? Get your million from the grabber, not the nearest target that actually happens to have a million.

Until the greed goes away, until individuals are held responsible for individual actions, employers will take draconian measures to protect themselves from a draconian threat. Put down the lawyer and we'll turn off the packet logger.

Learn how to write headlines!

[Anonymous Coward]

The court didn't say that "Gov't Employee Texts Not Private", you dolt! It said that communications sent via government devices aren't private. What a troll...

in the private sector

[OrangeTide]

we just kind of assume employers occasionally audit the use of company property. That includes physical things likes computers, pagers, cellphones. And virtual things like company networks(what use internally), VPN usage, company internet gateways(what sites you access externally), company IM services(jabber, lotus sametime, whatever), emails, and file servers.

It is not unusual for an IT department to look at your back-ups and question your judgment in filling your work computer's backup folder with personal MP3s.

Just because you take a phone and laptop home every night doesn't mean it is your personal property.

it just seems obvious that government employees would have to operate under the same environment as the rest of us. Maybe if the government operated like they can fail if they don't behave in a competitive way some of our problems would just go away. That's just wild conjecture on my part though.

Not sure that is a correct reading of the opinion

[Binkleyz]

1. IANAL

That said, I read the entire opinion, and there is a nuance in what was decided that seems to have been overlooked here, at least thus far.

In the case in question, the police officer named in the suit was using his work-issue pager to send personal messages, but the initial inquiry was a result of the good-faith request of the police chief to check into whether the issue was that the number of characters per month (set at 25,000) that had been contracted with Arch Wireless was sufficient to the task. Only upon examination of the details of those transmissions did the personal nature of them come into focus.

If I read the opinion correctly, the fact that the messages were examined for a non-disciplinary reason (in this case, to ascertain if the upper limit on characters sent per month was sufficient to encompass all of the required official communications.

Re:Not sure that is a correct reading of the opini

[Binkleyz]

hit the wrong button, so continuing my thought..

If I read the opinion correctly, the fact that the messages were examined for a non-disciplinary reason (in this case, to ascertain if the upper limit on characters sent per month was sufficient to encompass all of the required official communications) made it legally "ok" for them to do so. If the rationale behind the examination was for a disciplinary or other reasons, the search would not have been reasonable.

I don't have a work phone

[Cro Magnon]

But I do have a work laptop. And there's a lot that I won't do on it that I do all the time on my home machine. The fact is, my work machine isn't really MY machine! It's their's! So, I do my business on their crap, and have fun on my own crap.

What about subsidized phones?

[jmerlin]

If you have your own cell plan, some organizations will pay a fixed rate monthly as a subsidy for any individuals who are expected to always be available by phone. Does this qualify as "government provided" if that organization is a one of the government? This might be a really shady if so, personal cell phones with their subscriptions subsidized = signing over privacy? And what if the job requires you to have constant communication either by a phone provided to you or a subsidy on your existing service?

Re:Not sure that is a correct reading of the opini

[butlerm]

(1) Yes. A warrantless review by a government employer does have to be "motivated by a legitimate work-related purpose", according to the decision.

(2) Somewhat different rules apply to private employers. The latter generally have fewer restrictions, because the Fourth Amendment does not apply to the actions of private parties (although other laws do).

(2) Regardless of what the employer did, what Arch Wireless did was illegal (according to a Ninth Circuit court decision) and the Supreme Court decision did not change that fact.

How is this a surprise?

[MistrBlank]

You get a work phone, it's work's property. Don't do shit with it you don't want your employer to see.

If you work in public sector, don't do or say things on it you don't want the public to know.

seriously?

[zcold]

I cant imagine anyone thinking they have a right to privacy on a company device. I have a mac book provided by my company. Anything I do on it I consider privacy, obviously I use another device to browse my pr0n. I freelance on the side. I dont use this laptop to do work outside of the company, and if I did, I dont leave a trace on the laptop. If they were to issue phones, I would have a separate phone for anything non business.

Re:seriously?

[__aatirs3925]

I've seen companies go as far as do some kind of remote viewing on users desktops, browse files, histories etc... Sometimes even live internet histories which are stored onto a server. I really don't care, if it's not your property you shouldn't be thinking about privacy unless the company you work for turns around and uses your credit card info or other personal information in a fraudulent manner. People should be thankful they get loaner phones or laptops, not all companies do that and requires you to bring your own and often at your own expense (so long as it's in the boundaries of legal).

Live at work!

[Itninja]

I mean the building I work in has beds, showers, multiples restrooms, lots of food and a full kitchen. And I can come and go 24 hours a day with impunity. Why in the world would I even get my own place?

Re:Live at work!

[JWSmythe]

    Welcome to the Army son. You forgot the part about being sent on patrols, and getting shot at. But hey, one persons heaven is another persons hell.

How about buying a personal cellphone and not havi

[Anonymous Coward]

How about buying a personal cellphone and not having this issue?

Headline is misleading

[GovTechGuy]

The ruling doesn't actually establish much precedent for expectations of privacy; in fact the judges go out of their way not to: http://thehill.com/blogs/hillicon-valley/technology/103941-supreme-court-okays-search-of-policemans-texts

I have a problem with this.

[Radical Moderate]

There's a limited amount of real estate on my body. Requiring me to carry a device when I'm not on the clock and claiming the right to review everything I do with it seems too intrusive. Sure, I can carry two phones, but why should I have to?

Now if you can provide me a device with two lines, one private and one for work, you can go ahead and knock yourself out spying on my work line. I work for a state government and pay for my own phone because it's not worth dealing with the crap that comes attached to a work phone.

pre-meeting meetings

[AgentPhunk]

Many years ago I worked at a Boston-based mutual fund company. We not only had pre-meeting meetings (where the people on your "side" would all agree on what they'd say/agree to in the actual meeting), but then we started have pre-pre-meeting meetings - where a smaller subset of the people on your side would agree on what they'd say/agree to in the pre-meeting meeting, and then what they'd actually say in the actual meeting. (!!!)

Confused? You betcha. Backstabbing was considered an acceptable way to get your job done, especially if it had ANYTHING to do with the Marketing department.

Re:pre-meeting meetings

[JWSmythe]

Confused? You betcha. Backstabbing was considered an acceptable way to get your job done, especially if it had ANYTHING to do with the Marketing department.

    You could have left the marketing department off. Backstabbing and other office politics are how you are successful in any company. Someone's getting a promotion over you? Seed their computer with kiddie porn, and then send it to the CEO from their email account. Oh, now *you're* getting a promotion. How odd. Watch out though, just because you're on top means there's a whole sea of other sharks who would do the same (or worse) to you. Why are the police by your car?

    What's that brick of white powder they're taking from my car. What do you mean I'm under arrest? You got an anonymous tip? A probable cause search warrant? That's not mine, I swear. Fired? The company has a zero tolerance for drugs? It's not mine, I swear! Now you're up for 5 to 10 in state prison, and someone new has the biggest target on their back.

    It's all in how strong your BOFH-foo is. Apparently not strong enough. Well, when you get out of prison, you'll have excellent training in being a transexual prostitute. Bubba likes the fresh meat.

Freedom of Information Act

[Anonymous Coward]

So, are text messages recoverable through Freedom of Information Act requests? If so, then I'm guessing there will be a huge number of requests from reporters trying to dig up dirt, opposition parties trying to dig up dirt, you name it.

I can't wait to see the results...

kienthuctaichinh.com

[Anonymous Coward]

Actually, it's still under debate... the IRS has not issued a final ruling on inclusion of company-paid cell phone charges as taxable fringe benefits

http://www.kienthuctaichinh.com

I agree

[sqldr]

I have a blackberry for sysadmin related on-call harassment from zabbix, and shiny as it is (I broke it last weekend at the downpour at download festival last weekend and it got waterlogged.. now I have a nice new one!), I don't see it as my property.. some employees use it as their main phone, but I have my own phone for private stuff, so getting a new object whose only purpose is to annoy the fuck out of me when I'm trying to relax and tell me LDAP isn't working isn't really an accolade. It's like being handed a pair of flight goggles by emperor Hirohito. It's plugged in to the office blackberry server which is in turn connected to an exchange server which I don't have control of. It would be foolish of me to send personal information on it.

Does this extend to corporate jets?

[Anonymous Coward]

Does this extend to corporate jets? Could the owners of a company (the shareholders) get access to what the CEO is doing on the corporate jet? How about his emails and texts?