Archive | City of Ontario v. Quon

The Fourth Amendment, New Technologies, and the Case for Caution

The difficulty some of the Justices had with pager technology in City of Ontario v. Quon yesterday reminds me of a passage in an article of mine on why judges should be cautious about applying the Fourth Amendment to new technologies. In the passage, I argue that judges are particularly likely to make errors in applying the Fourth Amendment to new technology because they are not well-situated to get a sense of the technology, its evolution, and the likely impact of potential Fourth Amendment rules. The argument goes on for several pages, but here’s a taste:

The task of generating balanced and nuanced rules requires a comprehensive understanding of technological facts. [C]ourts generally are not [well-equipped to develop such understandings].

The information environment of judicial rulemaking is usually poor. Judges decide cases based primarily on a brief factual record, narrowly argued legal briefs, and a short oral argument. They must decide their cases in a timely fashion, and can put only so much effort into any one case. In some contexts, these limitations do not impose a heavy burden on effective judicial rulemaking. Recall the automobile traffic stop cases. Because judges can readily understand traffic stops, a brief record and narrow argument is generally sufficient to allow judges to create rules governing the specific facts at hand.

In contrast, cases involving new technologies such as wireless networks, public-key encryption, and data-mining technologies raise more complicated issues. Judges struggle to understand even the basic facts of such technologies, and often must rely on the crutch of questionable metaphors to aid their comprehension. Judges generally will not know whether those metaphors are accurate, or whether the facts before them are typical or atypical given the technology of the past or the present.

These dynamics make it easy for judges to misunderstand the

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Was the Stored Communications Act Actually Violated in City of Ontario v. Quon?

At today’s oral argument in City of Ontario v. Quon, several Justices took the view that whether Fourth Amendment “reasonable expectation of privacy” existed in the case depended in part on whether the disclosure violated the Stored Communications Act (SCA), an electronic privacy statute. That raises a surprisingly tricky question: Was the Stored Communications Act actually violated in the Quon case?

The Justices seemed to think the disclosure violated the Stored Communications Act, presumably because the Ninth Circuit had held that Arch Wireless was a provider of electronic communication service that could not disclose Quon’s messages to the government. But if the Justices conclude that the Fourth Amendment issue granted in Quon depends on whether the SCA was actually violated, then presumably the Ninth Circuit’s analysis isn’t law of the case (that is, binding on the Supreme Court) and the Justices need to do an independent analysis of whether the disclosure violated the SCA. That turns out to be quite uncertain, and I wanted to explain why.

Here are the facts. The city hired Arch Wireless to provide pager service, and then gave the pagers to individual police officers to use. Arch Wireless made copies of all sent and received text messages for billing purposes. The city later asked Arch Wireless for copies of the texts, and Arch Wireless then provided the transcripts to the city. The city looked through the transcripts, finding the non-work related text messages that led to the lawsuit.

So was the SCA violated? In the district court and the Ninth Circuit, the plaintiffs litigated the issue under the voluntary disclosure provisions of 18 U.S.C. 2702. Under that provision, providers generally cannot disclose the contents of communications it is holding, with a series of possible exceptions. The exception litigated below was 2702(b)(3), which says that [...]

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Thoughts on the Oral Argument in City of Ontario v. Quon

I was at the Supreme Court this morning for oral argument in City of Ontario v. Quon, the Fourth Amendment text messaging case. Here are a few thoughts from what I heard over the speakers from the Lawyer’s Lounge:

1) Based on the questions, the strongest proponent of Fourth Amendment protection in this case appeared to be Chief Justice Roberts. Yes, seriously. Chief Justice Roberts jumped out of the gate with very critical questions for the city’s lawyer, and offered mostly very friendly questions to the lawyer for Quon. My sense was that Roberts seemed to think that if you have a pager, and you’re communicating using it, it’s yours and you have privacy rights in those communications — subject to an allowance for reasonable searches, of course, but privacy rights nonetheless.

2) There was a lot of discussion of the Stored Communications Act, and whether breach of a statutory privacy law essentially created or at least helped make the case for a Fourth Amendment violation. I don’t think there was a real resolution of the issue, or that enough Justices tipped their hand on this, but there was a lot of discussion of it. As I’ve written here before, I don’t think the statutory questions should be part of the constitutional inquiry: Especially so with a hypertechnical statute like the Stored Communications Act. But there were at least some Justices (including Roberts, if I recall correctly) who seemed to think SCA violations were relevant to whether there was a constitutional violation.

3) More broadly, there was lots of discussion on the meaning of “reasonable expectations of privacy” in new network technologies. As Justice Alito noted, this is a new world of computers and network communications, with facts really different from what we’re used to: What do we look [...]

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Some Thoughts on the Reply Brief in City of Ontario v. Quon

The Reply Brief in the Court’s only major Fourth Amendment case this term, the text-messaging case City of Ontario v. Quon, has now been filed and is available here. Here are a few thoughts on it.

(1) The parties focus significant attention on the Stored Communications Act, somewhat to my surprise. The Stored Communications Act (SCA) is the federal statute that governs access to e-mail and the like: The Quon case was originally litigated under both the SCA and the Fourth Amendment. Quon argues that the SCA helps create a reasonable expectation of privacy in the stored text messages. By creating statutory privacy rights, Quon argues, the SCA helped make any expectation of privacy “reasonable.”

I don’t think that’s a persuasive argument, with a possible caveat I’ll get to in a minute. As a general rule, I think statutory privacy laws have to be considered independently from the Fourth Amendment: The creation of statutory privacy laws cannot make an expectation of privacy constitutionally reasonable, and the absence of them cannot make an expectation of privacy constitutionally unreasonable.

The problem with the argument that statutory privacy laws can create a reasonable expectation of privacy is that it is only made when Congress legislates and intentionally rejects the standard of Fourth Amendment protection and opts instead only for lesser, sub-Fourth Amendment protection. After all, if Congress created a right coextensive with the Fourth Amendment, the Fourth Amendment rule would never be reached: Under the principle of Constitutional avoidance, courts generally would resolve cases on statutory grounds rather than constitutional ones. Thus the argument for statutory creation of Fourth Amendment rights is invoked only when Congress has enacted privacy protection less than the equivalent Fourth Amendment standard. This creates a problem, as the argument then becomes that Congress’s rejection of the [...]

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Will the Supreme Court Rethink Public Employee Privacy Rights in Quon?

The announcement of the cert grant in City of Ontario v. Quon means that the Supreme Court will revisit for the first time the splintered decision in O’Connor v. Ortega, 480 U.S. 709 (1987), that created the modern framework of public employee privacy rights. That raises the possibility that the Court might change the basic legal standard that lower courts have applied since O’Connor, shaking up the rules in this area that have long been considered settled. I wanted to blog a bit on what that means and why it matters.

Let’s start with private-sector employee rights. When a criminal investigation arises in the private workplace setting, there are three basic players: the Employee, the Boss, and the Policeman. The Boss is free to search the Employee’s space because the Boss is a private actor who is not regulated by the Fourth Amendment. On the other hand, the Policeman can’t enter the workplace without a warrant or the third-party consent of the Boss. Under the Fourth Amendment, we say that the Employee has a reasonable expectation of privacy in the workplace — at least the workplace not exposed to the public, such as the open areas of a store. At the same time, the Boss has very broad third-party consent rights to let the Policeman come in and search.

Now consider what changes in the setting of government employment. The Boss and the Policeman are now on the same team. They are both “the Government.” And the precise lines between the Boss and the Policeman may be hard to draw. If you go up the chain of government employment, you quickly get to the Boss who has both work-related control of the office and also control of criminal investigators or security officers who have the power to [...]

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