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Supreme Court Refuses to Make Landmark Privacy Ruling

Posted in Privacy Rights

The Supreme Court issued a ruling yesterday (8-1) in Ontario, Calif. v. Quon, U.S., No. 08-1332, 6/17/10 (PDF link), basically punting on elaborating on Fourth Amendment privacy rights because technology is still emerging.  The technology?  Pagers.

The police department for the City of Ontario in California provided pagers to its officers in 2001.  A computer and Internet usage policy provided that the department could monitor all electronic activity of its employees, including email and Internet usage.  There was no specific reference to pager usage and text messages. 

The distinction between transmission technology for email and pager/cell phones is important.  The email and Internet usage at the police department would travel over the department’s computer servers.  The pager/text messages would not but, rather, would travel over the wireless provider’s (Arch Wireless) networks.  The point being, monitoring of the department’s own servers is a much easier question than monitoring communications that  travel over a service provider’s servers.

Majority author Justice Kennedy wrote that these forms of technology are still too emergent to risk creating bad law:

The Court must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer. The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear. See, e.g., Olmstead v. United States, 277 U. S. 438 (1928), overruled by Katz v. United States, 389 U.S. 347, 353 (1967). In Katz, the Court relied on its own knowledge and experience to conclude that there is a reasonable expectation of privacy in a telephone booth. See id., at 360–361 (Harlan, J., concurring). It is not so clear that courts at present are on so sure a ground. 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 communication devices.

Previously, the Justices understood how telephone booths worked and were (presumably) not intimidated or confused by the technology. Apparently, pagers were a bit more troubling.

But blaming the lack of a firm ruling on understanding the technology does not give the Justices enough credit. The Majority notes that cellphones and text messaging are so pervasive that employers tolerate personal use of employer-owned devices for the sake of efficiency (which weighs in favor of finding privacy expectations), while the affordability and pervasiveness of this technology weighs in favor employees having devices for personal use (which makes it harder to have an expectation of privacy in employer-owned hardware). The Majority also noted that state law is emerging and filling in the gaps that are arising (although on a very limited basis).

Rather than addressing the 800-pound gorilla, the Supreme Court instead focused on whether the government had "reasonable grounds for suspecting that the search [was] necessary for a noninvestigatory work-related purpose." Here, the police department was conducting an investigation into usage to determine if the pager usage plan was sufficient for the department’s needs. Finding that there was a legitimate basis for the search (and upholding prior rulings giving employers’ broad rights in searching employer-owned hardware), the Supreme Court concluded that the department’s review of pager message contents was appropriate conduct. In other words, if the department found improper behavior as a result of a search unrelated to looking for improper behavior, whatever found was fair game.

The court also noted two things of interest. First, during the Internal Affairs investigation the department redacted all messages sent while the officer was off-duty. Second, even if the officer did have a general expectation of privacy in the messages, as an officer he should have known that his messages were subject to legal scrutiny in at least some cases (for example, I assume, as part of discovery in a police abuse case) and he could not expect privacy in all circumstances. Again, no guidance on when he could expect privacy, if at all.

I, for one, am looking forward to 2018 when cases dealing with 2010 technology may be addressed by the Supreme Court.  Hopefully the Supreme Court will have a good grasp of a Facebook Wall.