Jun 172010
 June 17, 2010  Posted by  Court, Featured News, Workplace

The Supreme Court has issued its opinion in City of Ontario v. Quon (previous coverage here).

The  opinion was written by Justice Kennedy.  Erin Miller of SCOTUSblog writes that the court held that

the search of the police officer’s text messages to his colleagues and to a woman with whom he was having an affair was reasonable, and therefore the officer’s 4th Amendment rights were not violated.  The opinion notes that the case “touches issues of far-reaching significance,” but adds that the case could be resolved simply by apply several principles on when a search is or is not reasonable.

Before considering the reasonableness of the search, the court considered whether Quon had any reasonable expectation of privacy and concluded that he didn’t:

Before turning to the reasonableness of the search, it is instructive to note the parties’ disagreement over whether Quon had a reasonable expectation of privacy. The record does establish that OPD, at the outset, made it clear that pager messages were not considered private. The City’s Computer Policy stated that “[u]sers should have no expectation of privacy or confidentiality when using” City computers.

One of the issues that had been raised in discussing the case had to do with the privacy expectations of those who exchanged text messages with Quon, i.e., even if Quon didn’t have a reasonable expectation, did they? The court notes that the third parties did not raise the issue in a way that required the court to address it:

Petitioners and respondents disagree whether a sender of a text message can have a reasonable expectation of privacy in a message he knowingly sends to someone’s employer-provided pager. It is not necessary to resolve this question in order to dispose of the case, however. Respondents argue that because “the search was unreasonable as to Sergeant Quon, it was also unreasonable as to his correspondents.” They make no corollary argument that the search, if reasonable as to Quon, could nonetheless be unreasonable as to Quon’s correspondents. …. In light of this litigating position and the Court’s conclusion that the search was reasonable as to Jeff Quon, it necessarily follows that these other respondents cannot prevail.

I expect to see a lot of commentary from legal scholars on this opinion and will add links to their commentary to this post as I see them.

Update 1: Lyle Denniston has some preliminary comments on the opinion over on SCOTUSblog.

Update 2: More coverage:

Adam Liptak of the NY Times: Justices Allow Search of Work-Issued Pager;
David G. Savage in the L.A. Times: Justices rule in favor of California police chief who read employee’s texts;
W. Scott Blackmer on InformationLawGroup: Quon: US Supreme Court Rules Against Privacy on Employer-Issued Devices

Update 3: 
Kevin Bankston of EFF also sees some hopeful signs in the decision: Hopeful Signs in Supreme Court’s New Text Messaging Privacy Decision, City of Ontario v. Quon.

Tony Mauro of National Law Journal covers the decision: Supreme Court Allows Search of Employee’s City-Owned Pager.

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