Last week the petitioners in City of Ontario v. Quon filed their merits brief. Quon is the pending Supreme Court case on Fourth Amendment rights of government employees in their text messages created using government-provided text pagers. I’ve read the brief, and it makes a surprisingly narrow argument: I suspect that this narrow framing will make Quon a significantly less important case than it otherwise could have been.
To recap, the issue in Quon is whether city employees violated the Fourth Amendment rights of Jeffrey Quon, a SWAT sergeant who had been provided a pager by the city, when employees went to the pager service provider and obtained stored copies of text messages that Quon had sent using his pager. I think there are three basic issues at play in Quon: 1) Does an individual generally have a reasonable expectation of privacy in copies of his text messages stored by a third party service provider?, 2) If so, is that expectation of privacy eliminated in the specific facts of Quon given that he was a government employee who had been specifically notified that he had no privacy rights, and 3) If Quon did retain a reasonable expectation of privacy, is the search of his messages reasonable under the speical needs exception to the Fourth Amendment? (To be clear, these are my questions, not the formal questions presented.)
I was particularly interested in the first question, as it has tremendously far-reaching implications for how the Fourth Amendment applies to e-mail and other contents of communications sent over computer networks. To put it simply, Question 1 is the question of interest to those of us who follow how the Fourth Amendment applies to new technology; Questions 2 and 3 are of interest to those interested in the general privacy rights of government employees.
I raise this context because the petitioner’s merits brief in Quon simply ignores the threshold first question. Its argument mostly assumes that there are Fourth Amendment rights in text messages generally, but then says that even if this is true, Jeffrey Quon sure didn’t have any of those rights given the specific facts of his case. The only mention of the first question comes on page 29 of the brief, when it notes the first question in passing:
Whatever expectation of privacy a sender or recipient of text messages on a government employer’s equipment can ever legitimately have—if any [fn3] —certainly none existed within the operational realities of the Ontario Police Department.
[fn3] In its amicus brief supporting rehearing en banc, the United States pointed out the serious analytical errors in the Ninth Circuit’s conclusions, arguing, among other things, that there generally is no reasonable expectation of privacy in text messages sent and received. App. 163-180.
The rest of the brief hammers questions 2 and 3, and to my mind quite persuasively.
On the whole, I think it was a wise strategic choice not to argue the first question. The Court granted the case because of Judge Ikuta’s dissent, and her dissent didn’t get into these issues. The facts are very strongly in the petitioner’s favor on the later questions; the Ninth Circuit’s ruling that the operational realities of the workplace didn’t eliminate Quon’s Fourth Amendment rights was an outlier. This framing of the issues lets the Court correct the outlier without going into the other issues.
Further, the Justices probably don’t have any particular interest in speaking on Question 1, as the Ninth Circuit panel decision in Quon was the first circuit to address the issue. Given the rapidly changing technology and the difficult Fourth Amendment terrain, the wise course is to stay out of the issue for now (even though I think there is a correct answer, that a user does normally have Fourth Amendment rights in his text messages). Finally, the City is on much easier ground arguing this case as an uncontroversial no-privacy-for-SWAT-team-officers case rather than a controversial no-privacy-for-text-messages case. So on the whole, it’s a wise choice, even if it does mean that the Court is much less likely to get into the technology issues that I personally find so interesting.
Soronel Haetir says:
I see your first question as being well off the mark. If you were to re-frame it in terms of private vs. public employer I believe you would be much closer.
Question #1 as you put it seems almost not worth discussing. If people didn’t have a general REoP in these communications there would be no reason I couldn’t figure out who your personal communications provider is and they’d just hand over the messages when I asked. I see the question of what can an employer do as being vastly different than your question #1. And there then may be differences betwen private and public employers that won’t get fleshed out by this case.
February 9, 2010, 7:56 pmOrin Kerr says:
Soronel,
I don’t think I understand your argument, but I think it might be based on a misunderstanding of what a “reasonable expectation of privacy” is.
February 9, 2010, 8:00 pmShelbyC says:
Maybe I don’t understand either. I sure have an expectation of privacy in texts I send. Now, I’m often accued of being unreasonable…
February 9, 2010, 8:09 pmOrin Kerr says:
Soronel, Shelby,
I think I may need to write a post or two on what a “reasonable expectation of privacy” is in Fourth Amendment law. A lot of people seem to think it means “privacy that a reasonable person would expect,” and that is not what it means: It is a term of art with a quite complicated meaning.
February 9, 2010, 8:13 pmShelbyC says:
That would be wonderful.
February 9, 2010, 8:16 pmOrin Kerr says:
Enjoy.
February 9, 2010, 8:59 pmSoronel Haetir says:
My point was that the fact that people /do/ have an expectation of privacy in such communications (whether reasonable or not) is a question so far beside the point of Quon that I don’t find it surprising that Ontario all but skipped it, or even conceded that they do have a REoP. Whether people have such an expectation when talking about employer provided equipment and services however is a vastly different question. Whether people do have a REoP against their employer, and whether that changes if their employer is the government is a much more interesting question than if people have such expectations generally. I see that general question as so obvious that I believe anyone arguing otherwise is looking for some desperate way to win a case because they don’t have anything else going for them. The contours of what that expectation is, however, is a much different matter from whether it should exist.
I will say that the minor errors in your original make me suspect that you just didn’t go over it all that carefully.
February 9, 2010, 9:24 pmOrin Kerr says:
Soronel,
There is no such thing as a “reasonable expectation of privacy against an employer” in fourth Amendment law.
You write:
Which minor errors did you have in mind?
February 9, 2010, 9:42 pmOrin Kerr says:
Soronel,
It’s also worth noting that although you see the argument “generally” as so obvious no one would possibly challenge it, the Justice Department filed an amicus brief before the Ninth Circuit arguing that position is wrong and Congress has passed laws that are premised on that position being wrong.
February 9, 2010, 9:52 pmSoronel Haetir says:
The typos that jumped out at me are “peititioners” and “notifed”. Such things really stand out when using a screen reader.
February 9, 2010, 10:40 pmOrin Kerr says:
Soronel,
A few years ago, I sent out an article to journals and had a full board read but missed placement in the Michigan Law Review by one vote among the articles editors. I knew someone who was on the board, and she explained to me later that the editor in question rejected the article because he found a few typos: The editor reasoned that if there were typos in the draft it might be a signal that the reasoning of the article was problematic, too.
It all worked out, as the article placed in the Harvard Law Review the next week and has been widely cited since then — and if I had received the offer from Michigan I would have missed out on Harvard. But it’s funny to remember the expectation that a typo is more than just a typo.
(In this case, I’ve just never figured out how to use the spell check feature in wordpress, so I don’t bother. I hope that’s not a sign of generally defective legal reasoning, but I realize some people may think it is.)
February 9, 2010, 11:13 pmSoronel Haetir says:
*shrug* You usually do much better (at least by the time I see them anyway) so it just made me think this particular post got hammered out without going back to make sure it all tied together.
So, I take it by your comments that you believe if this had been a private employer that the case would have come out the other way in the lower courts? I believe it should even for a government employer and I am somewhat confused that you seem to want to skip right past that divide given your generally fact specific enquiry into 4A situations.
No, but your prior Quon posts have brought up the fact that an employer’s ability to consent to a search, while very broad, is not in fact unlimited.
February 9, 2010, 11:44 pmOrin Kerr says:
Soronel,
I’m sorry if my post isn’t persuasive to you, but I’m still not entirely sure what position you are taking. As I said before, I think you’re assuming something about what a reasonable expectation of privacy is that is different from what the Fourth Amendment cases say it is. I wrote a follow-up post to explain it; I hope that is helpful to you.
If the Quon case came up in a case of private employment, I believe Quon would have a reasonable expectation of privacy in the contents of his text messages for reasons I explain in my forthcoming article on applying the Fourth Amendment to the Internet. But the existence of a reasonable expectation of privacy wouldn’t be relevant anyway, as there would be no state actors and the Fourth Amendment wouldn’t apply at all to the employer access to the messages. As for whether a private employer could consent to a law enforcement search in that sort of set of facts, the issue would be whether the employer has common authority over the text messaging account. The only case I know of with those facts concluded in what is arguably dicta that the agreement to let the employer monitor is essentially consent, at least applying the statutory consent principle of ECPA which seems to mirror the constitutional standard. See Flagg v. City of Detroit. More broadly, though, courts have allowed a nearly limitless scope of consent in the workplace for private employers.
February 10, 2010, 12:13 amAF says:
Orin,
Are there any cases holding that there are no 4A rights in information in the possession of a 3rd party telecommunications company? This strikes me as the type of argument that is formally coherent, and which the government therefore relies on when it wants to expand its powers, but which is not very persuasive to judges.
February 10, 2010, 1:00 amOrin Kerr says:
AF,
There are very few cases on 4th Amendment rights in stored contents held by telecommunications companies. But there are cases saying that you don’t have a reasonable expectation of privacy in stored 4th class mail (on the theory that the postal company is permitted to open that mail); you don’t have a reasonable expectation of pirvacy in cordless phone calls (as they are broadcast), you don’t have a reasonable expectation of privacy in your phone records (as that information is transmitted to the phone company), bank records (ditto), and tax records left with your accountant (as you have exposed those records to your accountant).
February 10, 2010, 1:21 amAF says:
Orin — Thanks. I can see why you’re so interested in the topic.
February 10, 2010, 1:28 amBok Hackle says:
Thanks for your support, i like it. Thanks
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February 10, 2010, 2:31 pmRod Tidwell says:
Where’s Jerry Maguire when you need him? He is, after all, the “Ambassador of Quon.”
February 10, 2010, 2:51 pmTony Vittal says:
I think the comments about a REoP for personal communications conducted “in the clear” using the employer’s equipment are off-the-mark. Most employers have a stated policy that there is no expectation of privacy in any communications using the employer’s equipment. Moreover, information security policies and procedures mandated by state and federal law require monitoring to assure compliance. That required monitoring precludes any REoP in those communications.
The solution for an employee is simple. If you want privacy in your personal communications, use your own equipment. If you prefer to use your employer’s equipment, for whatever reason, your communications are fair game.
March 9, 2010, 7:59 pmThe Volokh Conspiracy » Blog Archive » Communicating With Those Who Have No Privacy Rights: The Hard Question in City of Ontario v. Quon says:
[...] company relating to messages sent over a city-provided text pager used by a city employee. In an earlier post, I explained that the Petitioner’s merits brief made the stakes of Quon a lot lower than some had [...]
March 31, 2010, 1:50 am