Analysis

Justice Ruth Bader Ginsburg may have spoken for the entire Supreme Court on Monday when she offered a simple scenario: if the government hands out personal messaging devices to its workers, calls a meeting to put limits on their use, and tells the workers that their e-mails are going to be monitored, why would the employees think their messages were private?  The obvious answer would seem to be that it was not reasonable for them to think that.  Since there seemed little dissent from that proposition, a major case on electronic privacy in the workplace could well end with a Digital Age victory for the government as employer.

Sgt. Jeff Quon of the Ontario, Calif., police department and his texting partners drew a little sympathy from the Justices during the oral argument in Ontario v. Quon (08-1332), but it was nowhere near enough to indicate that they will gain a constitutional right to privacy in the e-mails they exchanged on the sergeant’s SWAT team pager.  While the Court did not seem tempted to rule that a government employee never has any right to expect privacy in any message on a government-provided pager, it might go far to limit that right, especially in police departments or other agencies where the workers are given the pagers mainly for emergency use.

What mainly seemed to overwhelm Sgt. Quon’s hopes for privacy were the facts in the case, at least as the Court’s members filtered those facts and emphasized the ones that ran against his privacy claims.  Chief Justice John G. Roberts, Jr., did suggest that, from Sgt. Quon’s point of view, he may well have gotten at least mixed signals from a superior that suggested to him that what he texted with wife, girlfriend and team colleague might be shielded from supervisors’ eyes.  But, as the lawyer for the city of Ontario reminded the Chief Justice, whether that hope on his part had constitutional protection did not depend on what he believed, but rather on what society was prepared to endorse.  And, from what most Justices said, it hardly seemed that at least those members of society were willing to support a SWAT team member’s texting without monitoring.

The Justices appeared to embrace several different notions of why a policeman’s texting would be subject to examination by superiors: the government supplied the device, the government made rules limiting its use, the contents of the messaging might be demanded for use as evidence in court — even the prospect that a dispatcher would get a busy signal when trying to reach an officer during an emergency.  But among the signals that the Justices did send: that cities, and other government entities, would be well advised to spell out very clearly in specific policies when, if ever, a worker’s e-mail would be private, so as not to imply privacy when none was intended.

If Monday’s session had about it anything that seemed peculiar to electronic privacy under the Constitution, it was the Justices’ interest in whether federal or state laws that guarantee such privacy should be taken as creating an “expectation of privacy” under the Fourth Amendment.  The city of Ontario’s lawyer and an attorney for the federal government argued that past precedents of the Court make clear that privacy expectations under that Amendment are not dictated by statutes, but several Justices seemed not too sure of that.  In particular, the Court seemed interested in whether the federal Stored Communications Act, which puts some limits on sharing of the contents of digital communication, might be understood to support at least some versions of digital privacy.

Justice Ginsburg, for example, said that, if the Act does bar a service provider from giving out transcripts of stored messaging, how could a police department make lawful use of such transcripts.  The city’s lawyer, Kent L. Richland of Los Angeles, answered that the Act is “extremely technical,” and interpretations of it by lower courts are “all across the board,” so it should not be understood as a promise of digital privacy.

Justice Samuel A. Alito, Jr., said he found it “puzzling” that privacy laws, like the Act, would have no bearing on when communications were private, adding that “I am at something of a loss as to how to determine if there is a reasonable expectation of privacy” in such communications.  The federal government lawyer, Deputy Solicitor General Neal K. Katyal, responded that, since technology is “in flux,” the Court should be cautious in surrounding particular technologies with constitutional protection, freezing out the chance for various legislative responses.

Sgt. Quon’s lawyer, Dieter Dammeier of Upland, Calif., had to spend most of his time at the lectern trying to convince the Court to view the facts to support Sgt. Quon’s interpretation of a superior’s advice that texting on his pager would remain private.  The Justices kept reciting to Dammeier other variations of the facts, suggesting that, while Quon might not have his e-mails audited, they were subject to that and might have to be disclosed under public records laws.

When Justice Stephen G. Breyer pressed Dammeier to recite what alternative ways a government agency might have to make sure government-supplied electronic devices were not being misused, the lawyer’s several answers seemed to convince no one that they were realistic alternatives to simply examining the texts themselves.  And Justice Sonia Sotomayor suggested that “it would not seem practical” for government agencies to depend on employees themselves to monitor their own texting for abuses.

The Court is expected to decide the case before finishing the current Term in early summer.

Posted in City of Ontario v. Quon, Merits Cases, Uncategorized