December 15, 2009
When the Supreme Court gets in your inbox
The Supreme Court agrees to review one of the very few Circuit Court opinions finding 4th Amendment protection for in-box content. Should netizens tremble or rejoice?
By Ethan Ackerman
The Supreme Court has agreed to hear an appeal by a California city from an earlier 9th Circuit ruling finding the city had violated the Constitutional and statutory rights of one of its police officers by recovering and reading the officer's pager text messages. While some appellate commentators expected the Supreme Court to take the case, many 4th Amendment scholars (and this author) were surprised by the Court's action in granting certiorari in the case of USA Mobility Wireless, Inc. v. Quon.
The Quon case is notable because it contains two major issues: the 4th Amendment privacy issue and the somewhat unique issue surrounding employer monitoring when the employer is also the government.
The latter aspect had previously driven much of the attention focused on the Quon ruling. In fact, 4th Amendment scholar Orin Kerr even suspects it is the public employee legal standard dispute that may be driving the cert. grant, especially in light of the arguments and authors of the dissent.
Prior to the Supreme Court's action, most of the legal commentaries and even a majority of the web search results for the case were from employer-side law firms telling their clients that private sector employee monitoring was still OK. For example:
* NelsonMullins attorneys, in an article oxymoronically titled "Employer Monitoring Best Practices," informed their clients that that there was no need to change "the surveillance approach used by U.S. employers."
* Greenberg Traurig reminded all employers that "electronic communications policies must be drafted and implemented to effectively eliminate any reasonable expectation of privacy," and that it was advisable to preemptively obtain employee consent to the disclosure of employee communications, even on 3rd-party services. However, Greenberg Traurig also pointed out the "limited direct applicability to private employers" of the case.
* Proskauer Rose explained that the "decision appears to change very little for private employers who wish to review employee communications stored on, or sent through, their own servers and computers" but also (regretfully?) concluded that federal law does "limit employers’ ability to request from third-party providers the contents of employees’ electronic communications."
* Foley & Lardner attorneys undercut the certainty of their recommendations, including that "text messages should be included in monitoring policies," by confusing cellphones and old-fashioned alphanumeric pagers in their discussion of the case.
Even much of the media coverage of the Supreme Court's decision to review the case focuses on the government employer-employee aspect, with both the LA Times and CNN devoting significant discussion to the fact that it was Quon's boss doing the reading and Quon was a police officer (salaciously) using department property.
Warning, a brief blogger-criticizes-some-mainstream-journalism rant: You'd think that a major news organization like CNN, able to employ someone with the presumably competent title of "CNN Supreme Court Producer," wouldn't get fundamental elements of this story wrong. The Court pointedly did not "accept a pair of appeals on this free-speech and privacy dispute" - it denied one and granted one. And "free speech dispute?" There's nothing remotely free speech about this case.
Employment law issues aside, this case is, at its core, a classic 4th Amendment case addressing when someone has a reasonable expectation of privacy in a communication. Quon's holding is notable for two things: (1) it finds a fairly expansive protection of 4th Amendment rights in electronic communications, and (2) it's one of a very small number of Circuit Court cases to do so. Rare cases like this can be privacy gold - they effectively stand until the Supreme Court reverses them. Further, because there are so few cases on the issue, a circuit split or other conflict is unlikely to occur, lessening the chance of Supreme Court reversal. This fact alone is reason for fans of an expansive 4th Amendment to be wary of any Supreme Court review.
Posted by Ethan Ackerman at December 15, 2009 09:49 AM | Privacy/Security
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