STEVE INSKEEP, host:
It's MORNING EDITION, from NPR News. Good morning. I'm Steve Inskeep.
Next week, the U.S. Supreme Court considers a question that may reach right into your pocket - or to your hand, wherever you're holding your cell phone. The question is whether personal text messages sent over electronic devices supplied by an employer are private.
NPR legal affairs correspondent Nina Totenberg has more.
NINA TOTENBERG: The facts of this case are not in dispute. When the Ontario, California, police department issued pagers to its SWAT team, the lieutenant in charge first told team members that the pagers would be covered like email on the department computer - no privacy.
But the lieutenant later told his subordinates that as long as they paid for any personal messages beyond the 25,000-character limit per month, the department would consider the messages private and would not review them.
After a few months, though, the lieutenant got tired of being what he called a bill collector, and the police chief decided the department should review the messages sent by the highest-volume users to see if the job required more free message capacity.
The department then asked the pager service to provide transcripts, and a review showed that the biggest text messager, Sergeant Jeff Quon, had exchanged hundreds of sexually explicit messages with his estranged wife, his girlfriend and a fellow SWAT officer.
Quon did pay for the messages, so he and the three other people he'd exchanged texts with sued the department. A federal appeals court ruled that the department had violated the texters' reasonable expectation of privacy, because the officers had been led to believe by a supervisor that they could use their pagers for personal, private use. The police department appealed to the Supreme Court, which will hear arguments in the case next week.
The eventual decision could have huge repercussions, because this is the first case testing privacy rights in the Internet age. And while this particular case involves text messages, its reasoning is likely to apply to email, Facebook messages, maybe even surfing the Web.
The constitutional nub of the case is the Fourth Amendment ban on unreasonable government searches, and whether this sort of text monitoring violates the privacy rights of government employees.
Much broader, says George Washington law Professor Orin Kerr, is this question: What about the privacy rights of people with whom the texter is communicating? Here, for example, one of the people Sergeant Quon was texting did not even work for the Ontario police department.
Professor ORIN KERR (Law, George Washington University): Does the government violate your rights when they take those messages off the server, even though you're not the government employee? And what does that mean for the rest of us, who do have privacy rights, when the government wants to get copies of those communications?
TOTENBERG: Dieter Dammeier, who represents Sergeant Quon and those he was exchanging text messages with, argues that without an explicit policy that covered pagers - which the police department did not have - this kind of monitoring was unreasonable.
Mr. DIETER DAMMEIER (Attorney): They were led to believe by the lieutenant that as long as they paid the overages, then nobody would be looking at their private conversations.
TOTENBERG: Rebutting that argument, the police department's lawyer Kent Richland contends that anyone communicating via police department equipment -whether they're sending out messages, receiving messages or sending back messages - should assume that nothing is private.
Mr. KENT RICHLAND (Attorney): Our point here is that when you're communicating on police department equipment - whether it's, you know, a pager or email to the police department computers - you can expect that the department may, in fact, have to look at the nature of those communications.
TOTENBERG: Richland points out that in both civil and criminal litigation involving police departments, lawyers will typically ask for all communications that took place over a period of several days.
But while police departments may portray themselves as special, so, too, do other government agencies. The National School Boards Association, for instance, has filed a brief contending that it would be dangerous if school officials could not monitor text messages between teachers and students. And however the Supreme Court rules in this case, it's likely that private employers will take cues from the decision, too.
So I asked Richland just how many of the justices can actually send text messages themselves?
(Soundbite of laughter)
Mr. RICHLAND: That's a very good question. I honestly don't know the answer to that.
Nina Totenberg, NPR News, Washington.
NPR transcripts are created on a rush deadline by Verb8tm, Inc., an NPR contractor, and produced using a proprietary transcription process developed with NPR. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.