Dan Solove has some additional comments on Ontario v. Quon, in response to comments by Orin Kerr:
I blogged about City of Ontario v. Quon a few days ago, and I want to raise another important issue in the case, one my colleague Orin Kerr has astutely pointed out. The case is on appeal to the U.S. Supreme from the 9th Circuit: Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892 (9th Cir. 2008). The case involves whether employees at a police department have a reasonable expectation of privacy in the contents of their text message communications made from pagers while on the job. In my previous post, I addressed this issue, which involves how to interpret the city’s monitoring policy (it had a general written policy for computer use but a set of informal practices for texting that were different).
The issue Orin raises involves the Fourth Amendment rights of the people Quon was texting and who texted Quon. Orin writes:
I now think that the really juicy questions in the case involve whether the access violated the rights of the individuals with whom those employees were texting (here, Jerilyn Quon, April Florio and Steve Trujillo). That is, the really key question isn’t whether the government access violated the rights of the government employee who had received notice; Rather, it was whether the government access violated the rights of the folks on the other end of the communications.
This is an interesting question. Suppose the Supreme Court finds that Quon lacks a reasonable expectation of privacy in his text message communications. What about the other people, including Quon’s wife, who had no idea whether the city was monitoring Quon’s communications or not?
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