Although Mark Sherman of the Associated Press reports that it sounds like the Supreme Court justices will find for the employer in this important workplace text-message privacy case, Orin Kerr had a somewhat different take on how oral argument went:
Justice Breyer focused on the reasonableness of the search (Step 2 of the O’Connor test), suggesting that even if Quon and the others had a reasonable expectation of privacy in their communications, the City acted reasonably in accessing the pager transcripts and looking through them. That might end up being the best narrow way to resolve the case: If the parties all agree that we’re in O’Connor-reasonableness-land, and the search is deemed reasonable under that standard, then that would seem to resolve the case without getting into the issue of notice or expectations of privacy in text communications generally.
Note: Ashby Jones of the WSJ provides a different perspective on the justices’ questions, here.
Update: Lyle Denniston of SCOTUSblog has a really good recap/analysis of today’s argument.
The transcript of the oral argument can be found here.