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U.S. Supreme Court Hears Oral Arguments in Texting Case

27 April 2010

Thanks to Elizabeth Khalil in the Hogan & Hartson privacy group for providing this report.

On April 19, 2010, the U.S. Supreme Court heard oral arguments in the case of City of Ontario v. Quon, a Fourth Amendment privacy case on appeal from the Ninth Circuit.

The argument centered primarily on the first of three questions presented in the case:  whether a police officer had a reasonable expectation of privacy in text messages transmitted on his official police department pager given the circumstances.  Specifically, his employer, the city government, had articulated a general policy stating that employees should have no expectation of privacy in their e-mail and Internet usage on official systems.  However, Quon understood the police department to have an informal policy that it would not read the personal text messages of officers who paid for additional text message volume on their pagers to allow for personal use.  The officer in question, Jeff Quon, was a SWAT team member who paid for such personal use of his official pager, from which he sent personal messages to his wife, girlfriend and others.  Department officials accessed Quon’s messages as part of an audit.  In the course of reviewing the volume of the messages, obtained from the city's wireless provider, they came across the personal (and, at times, sexually explicit) content of the messages Quon sent.

At oral argument, Chief Justice John Roberts seemed somewhat sympathetic to the notion that the department had given Quon the impression that as long as he paid for personal use of his pager, “it would be reasonable for him to assume that private messages were his business.”  Overall, however, the Court appeared skeptical of Quon’s claims.

There were two other questions presented in the case that were not the focus of oral argument:  whether the Ninth Circuit contravened the Supreme Court’s Fourth Amendment precedents and created a circuit conflict by analyzing whether the police could have used less intrusive methods of reviewing the text messages, and whether individuals who send messages to a police officer’s pager have a reasonable expectation that their messages will not be reviewed by the recipient’s government employer.  

The justices also touched upon what, if any, bearing statutes such as the Stored Communications Act (SCA) should have on the Fourth Amendment's concept of reasonable expectation of privacy, although the SCA was not an issue before the Court.  It was, however, a subject of Quon’s suit at the district court and appeals court level, where he had named the wireless provider as a defendant.  In Quon v. Arch Wireless, the Ninth Circuit held that Arch Wireless had violated the SCA when it provided the text transcripts to the police department. T he actions of Arch Wireless were not at issue in the Supreme Court appeal.

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