SCOTUS Hears Argument On Texting Privacy
by Adam B
Mon Apr 19, 2010 at 04:32:04 PM PDT
When a government employee sends text messages on his government-issued pager, does he have a reasonable expectation of privacy that his messages will not be reviewed by the government?
That's the question which was argued before the Supreme Court of the United States today in City of Ontario (CA) v. Quon, involving a SWAT team member who was using his pager to send an excessive number of texts to his wife and his, um, girlfriend. [There was a limit of 25,000 characters/month under the plan.] The Department reviewed his messages to determine how many of them were work-related and how many were personal so they could charge him for the cost of the excess. Officer Quon, his now ex-wife and his girlfriend (also a colleague) in turn sued the City and his wireless provider in federal court, claiming violations of their Fourth Amendment and California Constitution rights of privacy, as well as violations of the federal Stored Communications Act by his wireless provider for disclosing the content of the text messages without his consent. The case before the Supreme Court concerns the federal right of privacy only.
The City argued that it had a reasonable need to monitor texts to confine the pager to work-related purposes and had asserted a no-privacy policy in advance; Quon argued that the department had told him it wasn't going to violate privacy, and that it had less intrusive means for determining whether his usage was appropriate. A coalition of news organizationa argued for the City, claiming that the public's right to know what government employees were doing with government resources meant such communications should be public records, while the ACLU, EFF, CDT and Public Citizen argued that whatever's decided here should be limited to the context of government-as-employer, and that the Court should be hesitant about making a lot of new law with all these new technologies (while, ultimately, supporting Officer Quon).
And, finally, the United States argued (via the SG's Office) that because the City's official policy announced there was no expectation of privacy, that therefore there was no right to privacy and the search was fine:
Because the City obtained all of the messages at issue through a valid search of the pager account assigned to Quon, the senders of those messages— Jerilyn Quon, Florio, and Trujillo—have no valid Fourth Amendment claim. Once their messages to Quon were delivered to his City-issued pager, they had no further cognizable interest under the Fourth Amendment in what happened to those messages. A valid search of a person’s papers frequently extends to papers sent by another person, such as an already-delivered letter. The original letter-writer has no right to object. So too here: the City had a constitutionally valid basis for searching Quon’s text messages, and that basis extends to all of the messages, irrespective of who sent them.
At oral argument today (PDF), the Chief Justice seemed sympathetic to Quon's argument:
CHIEF JUSTICE ROBERTS: We are not going to audit them. Right? That's what he said. He has to pay for them. Right? Now, most people will say, well, if you're paying for them, they are yours. And it particularly covered messages off-duty.
Now, can't you sort of put all those together and say that it would be reasonable for him to assume that private messages were his business? They said he can do it. They said, you have got to pay for it. He used it off-duty. They said they are not going to audit it.
So, too, did Justice Sotomayor:
JUSTICE SOTOMAYOR: Counsel, let's assume that in this police department, everyone knew, the supervisors and everyone else, that the police department people spoke to their girlfriends at night.
MR. RICHLAND: Yes, Justice Sotomayor.
JUSTICE SOTOMAYOR: And one of the chiefs, out of salacious interest, decides: I'm going to just go in and get those texts, those messages, because I just have a prurient interest. Does that officer have any expectation of privacy that his boss won't just listen in out of prurient interest?
MR. RICHLAND: Justice Sotomayor, as to the first aspect, the question of reasonable expectation of privacy, the motive should have no impact. The motive of looking should have no impact. The question of reasonable expectation of privacy must be analyzed according to the relationship between the officer and his -- and his employer.
JUSTICE SOTOMAYOR: But if in fact -- and whether we agree with this conclusion or not, we accept the lower court's views that there was an expectation that the chiefs were not going to read these things, some expectation of privacy --
MR. RICHLAND: Yes.
JUSTICE SOTOMAYOR: The limits of it have to be limited for all of the reasons you said. Doesn't this case begin and end on whether or not what the jury found is reasonable grounds for what the city did?
MR. RICHLAND: I think that what this case begins and ends with, if we assume that there was a reasonable expectation of privacy, is under the plurality opinion in O'Connor: Whether the search itself was reasonable. And the jury did, of course, make a determination as to the purpose of the search.
MR. RICHLAND: I think that what this case begins and ends with, if we assume that there was a reasonable expectation of privacy, is under the plurality opinion in O'Connor: Whether the search itself was reasonable. And the jury did, of course, make a determination as to the purpose of the search.
JUSTICE SCALIA: I guess we don't decide our -- our Fourth Amendment privacy cases on the basis of whether there -- there was an absolute guarantee of privacy from everybody. I think -- I think those cases say that if you think it can be made public by anybody, you don't -- you don't really have a right of privacy.
So when the -- when the filthy-minded police chief listens in, it's a very bad thing, but it's not offending your right of privacy. You expected somebody else could listen in, if not him.
MR. RICHLAND: I think that's correct, Justice Scalia.
JUSTICE SCALIA: I think it is.
When Neal Katyal argued for the United States, the Chief Justice piped up again, and really sounds like he's trying to understand the technology and defend privacy here:
CHIEF JUSTICE ROBERTS: Your point that you made just a moment ago that we don't want to freeze into place the constitutional requirements with respect to new technology, I wonder if it cuts the other way. We are dealing with an amendment that looks to whether something is reasonable. And I think it might be the better course to say that the Constitution applies, but we are going to be more flexible in determining what is reasonable because we are dealing with evolving technology.
MR. KATYAL: Well, I think that the -- the best way -- I think the most -- the easiest way for the Court to resolve this is to simply say that when we are dealing with what is reasonable, we look to the policy. And here there is a policy by the employer, it says that computer-associated and computer-related equipment and others, there is no expectation of privacy. You have a person who is told that repeatedly.
CHIEF JUSTICE ROBERTS: But that puts a lot of weight -- I mean, there are some things where we don't bind them. You know, you get the usual parking garage thing that has got all this small print on the back. We -- we don't say that you are bound by that because nobody reads it.
But in here, I just don't know. I just don't know how you tell what is reasonable. I suspect it might change with how old people are and how comfortable they are with the technology when you have all these different -- different factors. You know, they are told you can use it for private, you got to pay for it. I think if I pay for it, it's mine and not the employer's.
MR. KATYAL: Well, I think the clearest way, Mr. Chief Justice, to decide what is reasonable and what isn't is actually the terms of the policy. And it seems to me very little is more unreasonable than expecting the right to privacy after you have been told in a policy you have no privacy....
CHIEF JUSTICE ROBERTS: So, your -- your position would require people basically to have two of these things with them, two of whatever they are, the text messager or the BlackBerries or whatever, right? Because assuming they are going to get personal things, you know, some emergency at home, they are also going to get work things?
MR. KATYAL: To the -- under this policy, yes. You might have an employer that sets a different policy and allows for some de minimis use and a zone of privacy in that use. You can have a variety of different things. But what I think would be dangerous is to have a blanket rule that constitutionalizes and says you always have reasonable expectations of privacy in this technology. The result may be, Mr. Chief Justice, that employers then won't give that technology at all to their employees, and -- and eliminate even that de minimis use.
Meanwhile, you know who was skeptical about the officer's claims? Justice Breyer. For reals:
JUSTICE BREYER: [M]y question was, I don't see anything, quite honestly, unreasonable about that, where you are the employer, where it's a SWAT team, where
where- where you are paying for this in the first place. So the reason I ask it, is I would like you clearly to explain what's unreasonable about it?MR. DAMMEIER: The scope of the search was unreasonable.
JUSTICE BREYER: That's the conclusion, now what's your reason?
MR. DAMMEIER: Under -- under -- looking at O'Connor, you have to -- you have to look to make sure that the search is not excessively intrusive. Here, what they did was they took all the messages and started reading them. Given the purpose, the limited purpose that was found by the jury for the search, they didn't need to do that.
JUSTICE BREYER: Well, explain that one to me.
MR. DAMMEIER: They -
JUSTICE BREYER: Being naive about this, if I had a -- like, 20, 30,000 characters in 1,800 messages and I wanted to know which are personal and which are work-related, a good way to get at least a good first cut would be to read them.
(Laughter.)
JUSTICE BREYER: Okay? So I start off thinking that seems to be reasonable to me. That's what I would do.
MR. DAMMEIER: Well, that's certainly one -
JUSTICE BREYER: So all right. Now you tell me why that isn't reasonable.
MR. DAMMEIER: That's one of the ways they could have done it. They could have got -- they could have got consent from the officers first to do it. They could have had the officers themselves count the messages. After all, the officers were the ones that were paying for the -
JUSTICE BREYER: All right. But your officers might say I don't want to read these messages because they happen to be about the sexual activity of some of my coworkers and their wives and me, which happened to be the case here.
MR. DAMMEIER: Right.
JUSTICE BREYER: So I guess if you had asked for consent, the officer would have said no. Now he says, I still want to know. I will be repeating it. All right. So what -- that didn't sound very practical. What's the other way?
MR. DAMMEIER: Well, they could have -- they could have had the officers themselves count the messages.
JUSTICE BREYER: Well, the officer is going to say hey, these are all big -- work-related. I will tell you that. I only had two.
MR. DAMMEIER: Well -
(Laughter.)
JUSTICE BREYER: Okay. What's a third way?
MR. DAMMEIER: Okay. They -- the lieutenant could have said, hey, we're going to stop this practice that I started, and from this month forward make sure all you do is business-related. No more -
JUSTICE BREYER: That would have been rough on them. Because you want to let them have a few; you need pizza when you are on duty. You want to -- there are -
MR. DAMMEIER: Look -
JUSTICE BREYER: So far I listened to four things and I'm just being naive about it; I will read it more closely, but I don't see why these four things are so obviously more reasonable than what they did.
And, um, Justice Stevens:
JUSTICE STEVENS: I ask you this question about the basic background of a reasonable expectation of privacy. This is a SWAT team. Supposing it was the officer answering 911 calls or things like that. Isn't there sort of a background expectation that sooner or later, somebody might have to look at communications for this particular kind of law enforcement officer?
MR. DAMMEIER: Well, certainly -- certainly that could happen in any number of -
JUSTICE STEVENS: I mean, wouldn't you just assume that that whole universe of conversations by SWAT officers who were on duty 24/7 might well have to be reviewed by some member of the public or some of their superiors?
Expect a ruling by the end of the Court's term in June. Just don't ask me what ruling. Lyle Denniston, Orin Kerr have more.
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