Sexting, your lack of privacy and the iPad: a perfect storm?

Stick with me as I circle around widely on this one…I’ll start with a Supreme Court case that should be of interest to everyone in techdom (SEXTING reaches the high court for the first time!) including a brief digression defending the chief justice from charges of gadget ignorance. Then I will ramble on about why you really ought to separate your work and personal spheres. And I’ll end at the Apple iPad — not as link bait but simply to illustrate a great way to make the split.

So first stop: SCOTUS. The Supreme Court of the United States heard oral arguments on Monday in a fascinating case for those interested in the intersection of constitutional law and technological change. The case, City of Ontario, California v Jeff Quon, considers just how much privacy protection under the Fourth Amendment a government employee should be entitled to when using a work-supplied pager for personal messaging.

(UPDATE: In June, 2010, unsurprisingly, the Supreme Court voted unanimously in favor of the city. Sorry, Jeff.)

About 10 years ago, Police Sergeant Quon and other members of the city’s SWAT team were issued pagers. The city didn’t want to pay them extra to be on-call 24 hours a day. The pagers were a way to let the SWAT team members go about their own lives while off-duty and still be reachable in an emergency. The city had an acceptable use policy that said it had the right to monitor and review any employee’s email or Internet browsing on city equipment but it didn’t mention texting. The policy also banned obscene or inappropriate language in email.

None the less, the good sergeant apparently spent a lot of time sending and receiving sexy messages¹ with his wife and his mistress, even while he was on duty. A routine audit discovered the sexts and he got a reprimand. The question for the court is whether the city had the right to review the sexting messages in the first place.

< ;DIGRESSION>; As an aside, the oral argument resulted in several Supreme Court justices being, in my opinion, unfairly mocked for asking simple questions about pagers, texting and email. If you actually take the time to read through the whole 70-page transcript (here in PDF form), however, you’ll see that the justices were doing what they always do — posing simple questions to try to get to the heart of the case. The case also relates to events that occurred 8 to 10 years ago, so clarification was needed about the capabilities of the technologies in question.

For example, as mentioned above, Ontario’s policy covered Internet browsing and email but did not mention pagers or texting. A good bit of the case will turn on whether Sergeant Quon’s sexting should be considered the same as email and thus covered by the policy. Justice Roberts question asking about the difference between texting and email was to get at that issue. < ;/DIGRESSION>;

The oral argument did not appear to go at all well for Sergeant Quon, but regardless of how the court rules, one thing is crystal clear — employees have very little right to privacy when using employer-owned devices. The Supreme Court has had no problem sanctioning extensive employer invasions based on written policies. The only real twist in the Quon case is the fact that his employer is part of the government and thus covered by the Fourth Amendment.²

And had Ontario’s written policy included texting, I don’t think there would even be a dispute in this case. Despite what you may read in some accounts, the Supreme Court is not deciding whether you have the right to keep text messages on a work-owned device private from your employer. You don’t. Any employer with an up-to-date acceptable usage policy is likely going to claim the right to see all your sexy texts. And everything else.

Think about that for a sec.

And this brings me to my second point: If you use your work Blackberry or work laptop for all your personal email and phone calls and so forth, your employer can search through your messages, cancel your service, intercept email coming to your email address, and more. That may not matter to you much today but what about if you leave your job, get stuck with a crazy boss or even see your employer go out of business? How are you even backing up personal stuff like digital photos you might be keeping on a work laptop? You could lose access to much of your entire digital history. It’s not a good way to live.

There are a couple of possible solutions. One is to use cloud-based services. Keep your email, contacts and calendar on Google or Apple’s MobileMe or Microsoft’s Hotmail. Use Picassaweb or Zenfolio or Flickr for photos. Store files with Dropbox or Sugarsync.

A new idea we are going to try out around here is to add a lightweight personal computing device to the mix. We’re going to get an iPad to separate digital personal stuff from work-owned devices. It’s plenty capable for the tasks required and portable enough to go on a business trip or daily commute even if you have to schlep your work laptop around too. The 3G version even gives you network access almost anywhere without needing to cross an employer’s infrastructure.

It’s time to take back some privacy and some control over your digital life. Do it today.


¹Despite my best efforts, I have not successfully located a transcript of aforementioned sexy messages. Feel free to link in the comments if you have more luck.
²For lots more on the case, including a great brief about the ramifications for all the rest of us submitted jointly by the Electronic Frontier Foundation, Center for Democracy & Technology, American Civil Liberties Union, and Public Citizen, see here.

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  • JamesKatt

    The key is: Do not use your employer's devices for personal purposes. There is no privacy when it comes to those devices. Use your own.

    If this policeman used his OWN cell phone, he wouldn't have been in trouble.

  • Nice blog.

  • PDXeditor

    Being a labor representative, this issue came up as a subject of discipline too often. Although employees were warned about the consequences of improper usage, it did not deter the stubborn sort who insisted they knew otherwise. It lead to several demotions and one dismissal for using the employer's equipment.

    Although the officer can use a personal cell phone, it is important to never use personal equipment for work-related needs. In the public sector, it is extremely important to not use the employer-supplied equipment. Keeping notes, work files or other information on a personal computer can lead to having it subpoenaed for a freedom of information request. That can open the door to personal information being revealed. It is critical to keep a very solid wall between personal information and your work information. The sad fact is that you nearly surrender all your basic rights in the workplace thanks to the regressive legislation and court decision over the last 40 years.

  • Excellent point. Thanks for the comment.

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