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The Supreme Court and a privacy paradox

June 22, 2010 | 10:54 am

Reading about the Supreme Court's recent decision on the privacy of employees' text messages, it's easy to think the decision was more far-reaching than it was. Although Justice Anthony M. Kennedy's majority opinion philosophized sweepingly about the effect of technological advances on expectations on privacy, the issue in the case was narrow: Did the police chief in Ontario, Calif., violate the 4th Amendment's ban on unreasonable searches by looking at an officer's sexually explicit personal text messages sent on a government-issued pager? (Answer: In this case, no; the department warned employees that it reserved the right to monitor e-mail and Internet traffic on city-owned equipment. On other occasions when government employers snoop, maybe.)

Left for another day -- or another year -- is the question of whether employees of private firms have a reasonable expectation of privacy in e-mails and text messages they create on their employers' equipment. Probably not. Private employers are not government, and the 4th Amendment restrains government. A private employer looking at personal e-mails sent on company property isn't violating employees' 4th Amendment rights any more than my editor violates my 1st Amendment rights by declining to publish my editorial.

The odd thing about the text-message decision is that even as it rejected the cop's complaint, the court acknowledged that under a 1987 precedent the 4th Amendment does apply to searches of government employees. Yet, in general, the government as employer is different from the government as government -- for example, government employees may not engage in certain political activities open to private citizens. So why should government employees have a legitimate expectation of privacy denied to other employees? It's a double standard you might want to text your friends about. But watch your language.

-- Michael McGough

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