Apr 142010
 

Orin Kerr writes:

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.

Read more on The Volokh Conspiracy.

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