The Supreme Court announced this morning that it has granted cert in City of Ontario v. Quon, a case on whether a city employee’s Fourth Amendment rights were violated when city employees accessed text messages he sent on a city-provided pager when the city’s formal policy was that he had no privacy rights in his text messages but he had been told to the contrary by his boss.
The grant is good for business, but I find it rather odd. The basic issue of Fourth Amendment protection in text messages is splitless: Quon was the first court of appeals case to address the issue. Further, the question of how to deal with mixed messages of privacy in the context of public employee Fourth Amendment rights is splitless and factbound. That leaves me wondering why the Court was interested in the case. Indeed, when I was asked by a reporter recently whether I thought the Court might take the case, I confidently answered “no.” Factbound, splitless. I recommend DENY.
So what explains the grant? It must be that old Ninth Circuit magic. The opinion below was by a liberal Ninth Circuit panel: Wardlaw joined by Pregerson and a district judge. And then the opinion drew a vigorous dissent from denial of rehearing en banc by conservatives — Ikuta, O’Scannlain, Kleinfeld, Tallman, Callhan, Bea, and N.R. Smith — who accused the majority of getting it wrong and making the sky fall on how to apply O’Connor v. Ortega, 480 U.S. 709 (1987), the leading case on Fourth Amendment rights in the public employment setting. That one-two punch is hard for the Supreme Court to resist. The dissent from denial of rehearing en banc becomes the cert petition. So I suspect the Court granted based more on the dissent from denial of rehearing than anything else.
In my view, though, Quon is a problematic vehicle to address the concerns of the Ninth Circuit dissenters. That’s true for two reasons. First, it’s not entirely clear whether the O’Connor v. Ortega framework should apply in the first place. O’Connor articulated a sui generis Fourth Amendment framework for Fourth Amendment rights in the government workplace. But the text messages in Quon were not obtained in a government workplace: They were obtained from a private provider, Arch Wireless, that had contracted with the city. To me, that raises the legitimate question of whether Fourth Amendment rights in the text messages should have been properly analyzed under O’Connor v. Ortega at all. Maybe it should have been, but it’s an important threshold question given that the whole case seems to boil down to how to apply O’Connor.
Second, if you do analyze the text messages under O’Connor v. Ortega, you then need to consider how the O’Connor framework should have impacted the core question of Fourth Amendment rights in text messages. It’s one of the complications underlying Quon that the litigants and panel glossed over, but that now may become important. The problem is that the O’Connor framework is sui generis: The basic framework for determining when a government employee has a reasonable expectation of privacy in a government workplace is simply different from the framework for determining whether a normal person has a reasonable expectation of privacy in a workplace or any other place. (I blogged on the differences here, among other places.) So that makes Quon a difficult case to reach a holding on privacy rights in text messages generally: If O’Connor applies, the Fourth Amendment test in the public sector workplace is so different that it won’t necessarily shed any light on Fourth Amendment rights in text messages generally.
Anyway, sorry for all the Monday morning certbacking. But I do think this is an odd grant.
(By way of full disclosure, I have a vague recollection that what when Quon was in the district court, back around 2004 or so, I spoke very briefly to attorneys on both sides of the case about some of the novel issues raised in the case. I think I mostly discussed the Stored Communications Act issues; I don’t recall whether I also discussed the Fourth Amendment questions on which the Court granted.)
troll_dc2 says:
The Court took only one of the cert petitions. It did not take Arch Wireless’s. What does this mean?
December 14, 2009, 12:36 pmDave N. says:
I think even the judges on the 9th Circuit recognize that they are, at times, under a microscope — and the liberal judges sometimes act in a tactical manner with that realization.
For example, last week, an en banc 9th Circuit panel decided a death penalty case, Pinholster v. Ayers. Chief Judge Kozinski wrote a sharply worded cert. petition in the form of a dissent. The liberal majority assigned the case to Judge Milan Smith, a relatively conservative Bush43 appointee, who brought along Judge Bybee.
As a result, an en banc panel with a 6-5 liberal/conservative split ended up voting 8-3 to grant habeas relief on the penalty phase. While I believe Pinholster still has a high probability of a cert. grant, I also believe the odds are slightly lower than if Judge Reinhardt, as opposed to Judge Smith, had written the majority opinion.
December 14, 2009, 1:10 pmguy in the veal calf office says:
I really hope the term “splitless” does not catch on.
December 14, 2009, 2:37 pmNevadausa** says:
Orin:
Would an administrative subpoena by the governmental body seeking Quon’s texts (assuming such authority exits) obviate a 4th Amendment challenge?
December 14, 2009, 2:39 pmOut of Iowa says:
Why isn’t this case governed by the “Pen Register Cases?” see e.g., Smith v. Maryland. The sender turned over the information to a private third party (Arch Wireless) so he couldn’t have had a legitimate expectation of privacy in the contents of the messages.
December 14, 2009, 2:42 pmJoseph Slater says:
“Splitless and factbound” was going to be the name of my first album. Oh well.
To the legal issue, maybe some justices wants to craft something more specific than the general balancing test of O’Connor. Or maybe they want to add another hurdle for employees claiming Constitutional violations by public employers, as the court did for First Amendment claims with Garcetti. The third-party provider does seem to make things more complicated, though.
December 14, 2009, 2:52 pmDNJ says:
Dave N,
Regarding Pinholster, I was rather amused by Judge Smith’s rebuke to Chief Judge Kozinski in the majority opinion:
“Despite our dissenting colleague’s well-known flair for ‘creative’ writing, it is not appropriate for a federal appellate court to conjure up evidence that does not exist…”
December 14, 2009, 3:35 pmADF Alliance Alert » Supreme Court may hear appeal on workers’ text message privacy says:
[...] Orin Kerr at the Volokh Conspiracy: Supreme Court Grants Cert on Fourth Amendment Protection in Text Messages [...]
December 14, 2009, 3:58 pmMK says:
Uh, maybe the fact that soooo many commentators have beeh lauding the Ninth Circuit’s decision vis-a-vis privacy protections in the workplace, the Supremes decided it was best to squish now those little hopes for using the case as a vehicle for broader arguments in the er-ee setting now rather than waiting for it to metastasize. Plus it may be really hard for some on the Supreme Court to reconcile the sordid facts in the case with the result reached by Wardlaw, a factual circumstance Wardlaw took pains to diminish, sweep under the rug, what have you.
[OK Comments: But why squish now? It's so much more fun to squish when there's a split.]
December 14, 2009, 4:48 pmJK says:
Why would this be any different than voice mails on government-issued cell
December 14, 2009, 6:16 pmphone accounts? Cell phones are third-party providers and the issuing agency
would undoubtedly require users to sign releases warning that all voice mails
are subject to monitoring or review at any time.
Tweets that mention The Volokh Conspiracy » Blog Archive » Supreme Court Grants Cert on Fourth Amendment Protection in Text Messages -- Topsy.com says:
[...] This post was mentioned on Twitter by Peter Black, Eugene Volokh. Eugene Volokh said: Supreme Court Grants Cert on Fourth Amendment Protection in Text Messages: The Supreme Court announced this mor.. http://bit.ly/6BkVcH [...]
December 14, 2009, 7:45 pmVisitor Again says:
If people gave a damn about their privacy, they’d boycott cell phones–refusing both to buy them and to use them–until adequate privacy protections were in place in the law, either statutory or constitutional. An effective boycott would soon bring about pressure for a change in the law. But they don’t value their privacy–as demonstrated by their passive acceptance of the U.S. Supreme Court’s absurd notion that use of third party facilities renders fourth amendment privacy protections null in most circumstances–and they deserve what they get.
I have never owned or used a cell phone, in part because of the lack of privacy, but also because I still value being left alone until I choose not to be left alone, and my exclusive use of a land telephone line with message-taking capability serves that purpose admirably. While I do not question that cell phones are of value in many circumstances, the need to be in constant communication with everyone and anyone at all times has become a widespread obsession in our society, although I suppose what others obsess over is none of my business.
The California State Bar has said it will soon require every member to have a working e-mail address. So now a computer and an Internet connection are compulsory if one wants to practice law. I suppose the day is not far off when the California State Bar will require its members to have a working cell phone number, too, perhaps with a mobile Internet connection, so that it can pester them 24/7 in its frantic efforts to justify its outrageous membership fees. And like little lambs, the membership will meekly accept it.
December 14, 2009, 9:07 pmBruce Boyden says:
It’s too bad the Supreme Court won’t be considering the definition of “remote computing service.” Now THAT would be an interesting case!
December 14, 2009, 10:09 pmJohn Wesley Hall says:
Sometimes SCOTUS’s cert grants remind me of the dogs in the movie “Up”: “Squirrel!”
December 15, 2009, 6:01 amTuesday round-up | SCOTUSblog says:
[...] the blogosphere, Orin Kerr at the Volokh Conspiracy attributes the grant in Quon – which he describes as a “splitless” and otherwise [...]
December 15, 2009, 9:37 amRyan Waxx says:
Let me see if I understand the standards here on this blog:
It’s somehow uncivil or illogical to note the politics of a judge or the person who appointed the judge, but it’s just peachy to insinuate that the SC is motivated by animus against liberal decisions from the 9th circuit.
I seem to recall from previous threads that it’s also out of bounds to say that the 9th circuit has a disproportionate number of wacky decisions, which by sheer coincidence would be the only explanation other than animus for increased scrutiny of their decisions.
Interesting array of conversational norms. It’s almost as if someone is covering for some group.
December 15, 2009, 3:30 pmCockle Law Brief Printing, Co. Blog says:
[...] Law Blog and Slate’s Double XX Blog discussed the case at length. Last week, Orin Kerr at the Volokh Conspiracy noted that the Ninth Circuit’s opinion in Quon was written by a liberal panel and drew a heated [...]
December 23, 2009, 1:28 pmFaith and The Law » Blog Archive » The YouTube Bully and the Sex-Messaging Cop: Courts Stick Up for Rights Of Online Troublemakers says:
[...] fight on the bench worked what Orin Kerr on Volokh’s Conspiracy calls “that old Ninth Circuit magic.” A conservative judge (Ikuta) protested a management [...]
December 28, 2009, 9:28 amSusan says:
Just wanted to include some basic details regarding grants. Grants typically support non-profit businesses, intermediary lending institutions, and state and local authorities. Most of the federal grants are given to particular targeted organizations with distinct needs.
April 14, 2010, 4:08 pm