June 17, 2010 | By Kevin Bankston

Hopeful Signs in Supreme Court's New Text Messaging Privacy Decision, City of Ontario v. Quon

The Supreme Court today issued its decision (pdf) in City of Ontario v. Quon, addressing the question of whether a city government's search of transcripts of a public employee's text messaging over a city-issued pager violated the Fourth Amendment. EFF had filed an amicus brief (pdf) in the case urging the Court to avoid making any broad pronouncements on whether and how the Fourth Amendment protects the privacy of communications such as texts that are stored by third party communications providers, and instead to limit its decision to the privacy rights of public employees.

Today the Court did exactly that, while also dropping some hopeful hints about how it would address those broader privacy questions. Instead of finding no Fourth Amendment privacy protection in text messages, the Court instead assumed without deciding that there was a Fourth Amendment expectation of privacy in the text messages, but that the City's search of the text messages was reasonable under the Fourth Amendment because it was work-related. In doing so, the Court applied but did not expand its previous rulings on the limits of privacy in government workplaces.

Meanwhile, in explaining why it cautiously chose not to answer the expectation of privacy question, the Court — in addition to citing EFF's brief — seemed to preview how it would eventually address the question of whether we have a Fourth Amendment interest in the text messages stored by our cell phone and pager providers, and, by extension, in emails stored by our email providers, IMs stored by our instant messaging providers, and voicemails stored by our phone providers.

Rather than automatically concluding that communications stored with third party providers are entitled to no Fourth Amendment protection at all — the rule that the Department of Justice has urged in email privacy cases such as Warshak v. U.S. — the Court made clear it would instead cautiously make such decisions based on society's privacy expectations and its level of reliance on new communications technologies:

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) [finding that warrantless telephone wiretapping did not violate Fourth Amendment], 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.

Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. As one amici brief notes, many employers expect or at least tolerate personal use of such equipment by employees because it often increases worker efficiency. See Brief for Electronic Frontier Foundation et al. 16–20. Another amicus points out that the law is beginning to respond to
these developments, as some States have recently passed statutes requiring employers to notify employees when monitoring their electronic communications. See Brief for New York Intellectual Property Law Association 22 (citing Del. Code Ann., Tit. 19, §705 (2005); Conn. Gen. Stat. Ann. §31–48d (West 2003)). At present, it is uncertain how workplace norms, and the law’s treatment of them, will evolve.

...[T]he Court would have difficulty predicting how employees’ privacy expectations will be shaped by those changes or the degree to which society will be prepared to recognize those expectations as reasonable. See 480 U. S., at 715. Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self identification. That might strengthen the case for an expectation of privacy. On the other hand, the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cell phones or similar devices for personal matters can purchase and pay for their own. And employer 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-à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted. It is preferable to dispose of this case on narrower grounds. For present purposes we assume several propositions arguendo: First, Quon had a reasonable expectation of privacy in the text messages sent on the pager provided to him by the City; second, petitioners' review of the transcript constituted a search within the meaning of the Fourth Amendment; and third, the principles applicable to a government employer’s search of an employee’s physical office apply with at least the same force when the employer intrudes on the employee’s privacy in the electronic sphere.

All in all, it looks like the Supreme Court is treading very carefully when it comes to such 21st century electronic privacy questions, which is ultimately a good thing. However, the Court's reticence to decide what level of privacy we have in our electronic communications is yet another reason why it's high time that Congress stepped in to update and strengthen telephone and internet privacy laws to reflect new technology, as EFF has been advocating as part of the Digital Due Process coalition. Today's decision highlights how communications providers and the government need clear rules for the road when it comes to the privacy of new communications technologies, and we hope today's decision will speed Congress' consideration of the DDP coalition's reform proposals.


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