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'Sexting' Case Leaves Privacy Issue Unresolved

June 23, 2010

June 23, 2010 (Mountain View, CA) - Robert Brownstone, Law & Technology Director and co-chair of the Electronic Information Management Practice Group at Fenwick & West LLP, was recently quoted in the New Orleans City Business article "Sexting Case Leaves Privacy Issue Unresolved."

The U.S. Supreme Court recently ruled on the City of Ontario v. Quon, a case involving text messages sent and received by a police officer, Jeff Quon, on a city-issued pager. While the city had no text messaging policy, it had a computer and e-mail policy prohibiting the use of city-owned computers and all associated equipment for personal benefit, which also states that employees had no expectation of privacy in e-mail messages sent on the city's system.

In the court's decision it was deemed that an employer's acquisition of employees' text message transcripts to determine whether the messages were personal or business-related in nature was not an unreasonable search, and therefore no Fourth Amendment search and seizure violation occurred. The ruling sent a message to employers in the ruling: have a clear policy in place regarding personal use of all electronic communications and devices - not just computers and e-mail.

"The decision is still a wake-up call for 21st century government and private-sector employers alike,” said attorney Robert Brownstone. “The court essentially told employers exactly what to do in order to avoid problems - have clear express policies governing the use of all employer-issued equipment and update them frequently.”

Brownstone further notes, “Especially impactful is the main opinion's dicta as to the contents of express written policies being up-to-date and clearly communicated to managers and staff. The thrust of those dicta is consistent with years of workplace privacy case law applying various federal and state statutory and common law principles.”

Employees can also learn much from the case, starting with leaving their “sexy texts” to their personally owned mobile devices. “Always use discretion as to what you memorialize in writing,” advises Brownstone.

To read the New Orleans City Business article in its entirety, click here.