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Thursday, June 17, 2010

High Court Sidesteps Big Privacy Questions in Quon Pager Case

by Thomas O'Toole

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Nobody, it seems, not Congress, not even the U.S. Supreme Court wants to make a definitive statement about the privacy rights online. The high court said today that the time is not yet right to make a constitutional ruling about electronic privacy. Given the rapid pace of change in information technology and the relatively little attention online privacy issues have been given by Congress, state legislatures, and lower courts, it would not be prudent for the court to attempt to prematurely decide--and thereby conclusively establish as a matter of constitutional law--which kinds of online privacy expectations society is prepared to protect against intrusion. The decision is Ontario, Calif. v. Quon, U.S., No. 08-1332, 6/17/10.

The court decided the case on narrower grounds. Assuming that the police officer in this case did have a constitutionally protected, reasonable expectation of privacy in text messages he transmitted on a pager issued by the police department, the search of those messages by his employer was lawful under either the plurality opinion or Justice Antonin Scalia's concurring opinion in O'Connor v. Ortega, 480 U.S. 709 (1987), a ruling that gave government employers broad authority to conduct investigations into work-related employee misconduct, an 8-1 majority of the court ruled today.

On the larger constitutional question of electronic privacy under the Fourth Amendment, Justice Anthony M. Kennedy wrote for the majority:

The Court must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer. The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear. See, e.g., Olmstead v. United States, 277 U. S. 438 (1928), overruled by Katz v. United States, 389 U. S. 347, 353 (1967). In Katz, the Court relied on its own knowledge and experience to conclude that there is a reasonable expectation of privacy in a telephone booth. See id., at 360-361 (Harlan, J., concurring). It is not so clear that courts at present are on so sure a ground. Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices.

I am not sure what Kennedy is trying to say here. He's not willing to decide what a reasonable expectation of privacy might be based on his own "knowledge and experience" with electronic communications. He obviously thinks that is an unsound basis for a constitutional ruling. But he can't bring himself to criticize Katz for doing the same thing. Maybe all Kennedy is saying that the Katz court knew more about phone booths then he knows about electronic communications.

Kennedy went on to observe that the extent of employee privacy that employers will tolerate varies from workplace to workplace, and that some states are passing laws on employee rights vis-a-vis workplace monitoring. "At present, it is uncertain how workplace norms, and the law's treatment of them, will evolve," Kennedy wrote.

In another passage, Kennedy suggested that workplace policies can have a role in setting constitutional privacy expectations: "[E]mployer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated. A broad holding concerning employees' privacy expectations vis- -vis employer-provided technological equipment might have implications for future cases that cannot be predicted.

In proceedings below, the Ninth Circuit held that the police officer had a had a reasonable expectation of privacy in the messages based on the municipality's "informal policy" of never auditing messages Quon v. Arch Wireless Operating Co., 529 F.3d 892 (9th Cir. 2008)—a holding that was swept away by the high court today.
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