The Supreme Court Says ‘Dig Your Own Hole’

The Supreme Court has ruled that you don’t have privacy rights to the information on employer-provided pagers or cell-phones. If you want what you are texting about to be private, use your own phone, otherwise it can be seized and used against you without a warrant.

Adam Liptak,  Justices Allow Search of Work-Issued Pager

A California police department did not violate the constitutional privacy rights of an employee when it audited the text messages on a pager the city had issued him, the Supreme Court unanimously ruled on Thursday.

The decision represented only a preliminary effort to define public employees’ Fourth Amendment rights in the digital era, and Justice Anthony M. Kennedy, writing for the court, took pains to say that it was narrow and closely tied to the facts.

Still, the decision puts government employees on notice that electronic communications on devices provided to them may not be subject to the Fourth Amendment’s protection against unreasonable searches, as long as their employers have “a legitimate work-related purpose” for inspecting the communications.

Justice Kennedy said the court was uncomfortable fashioning comprehensive legal rules, given the pace of technological and cultural change.

“The court must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer,” he wrote in a part of the opinion joined by every member of the court except Justice Antonin Scalia.

“Cellphone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification,” Justice Kennedy went on. “On the other hand, the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cellphones or similar devices for personal matters can purchase and pay for their own.”

The decision did not address the privacy rights of people employed by private companies.

A lesson easily learned: dig your own hole, and then you can call it private.