The private public divide

In the early days of email government employees were told that they needed separate addresses for public and private messages. But that quickly became silly because there often exists no distinction between private and public – they can easily co-exist in the same person. But the problem has not gone away. In the SMS Privacy Case last year the Court of Appeals ruled that Employees’ text messages are private, even when transmitted on devices their companies pay for. But the case is now heading to the Supreme Court.

The background was a police officer had been sending personal private and occasionally sexually explicit text messages. In the court of appeals:

Judge Kim McLean said he “had a reasonable expectation of privacy in the text messages,” which were sent over a department-issued Arch Wireless pager. However, Judge McLean added that the “extent to which the Fourth Amendment provides protection for the contents of electronic communications in the Internet age is an open question.”The city, however, supported its stance against Officer Quon. In a filing, the city’s attorneys said: “To warrant Fourth Amendment protection, a government employee’s expectation of privacy must be one that society is prepared to consider reasonable under the operational realities of the workplace.” They maintain the city should not have to pay for the officer’s messages, which was used for “personal and highly private communications.”

The same problem appeared in Florida where a ruling from the Judicial Ethics Advisory Committee of the Florida Supreme Court decided that it was ethically wrong for judges to add lawyers who may appear before them as “friends” on social networks. Apparently old friends may still exist and eating lunch with the judge is not controversial. Strange logic.

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