No Wrath in this Quon–Ontario v. Quon

The Supreme Court passes on almost every issue before it in City of Ontario v. Quon.

By Ethan Ackerman (with comments from Eric below)

On Thursday, the U.S. Supreme Court released its opinion in City of Ontario v. Quon, a Fourth Amendment case over the privacy government employees, and those who communicate with them, have in their workplace communications.

I noted with some surprise in December 2009 when the Court granted certiorari, and wondered whether this was a good or bad thing for online privacy. The glass half-full or half-empty quandary remains after the court’s narrow opinion. The result for officer Quon and his text message recipients is a loss, but only because the Court found the city’s search sufficiently narrow to pass muster even assuming he was entitled to all the possible Fourth Amendment protections, even while the Court declined to conclude whether or not he did actually have those protections. Everyone else will have to await the further development of Fourth Amendment case law, as Justice Kennedy’s opinion for the unanimous Court said that “Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communications devices.”

There is more insightful commentary than this brief note at Scotusblog.

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Eric’s comments: after seeing the opinions, it remains baffling why the court granted cert in this case. The only obvious reason is that the Supreme Court felt like it had to fix the 9th Circuit’s mistakes, as it yet again reversed the 9th Circuit (like that wasn’t entirely predictable). Otherwise, the opinions are so limited to the facts of the case that they provide almost no value to anyone other than the litigants. That seems like a real lost opportunity for an appellate court with discretionary appeals. Even so, it’s better than dealing with a Supreme Court screwup that could have easily occurred given the messy facts in this case.

I had a chance to moot the case earlier in Spring, so I read the litigants’ SCOTUS briefs. By far the most compelling fact in that massive stack of paper was that Quon was a SWAT team member who was texting on the job using a government-issued device. The on-the-job conduct of SWAT team officers is especially likely to be subject to investigation/discovery requests if/when something goes wrong, so it makes total sense to narrowly circumscribe the privacy afforded to SWAT team members’ text messages. I would feel differently about the privacy rights of other government employees whose minute-by-minute choices don’t have the same instantaneous life-and-death consequences. I don’t see how this case’s outcome has any implications for private-sector employees or employers.

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