Legal Commentary

The Surprisingly Narrow Top-Side Merits Brief in City of Ontario v. Quon

By Orin Kerr

Last week the petitioners in City of Ontario v. Quon filed their merits brief. Quon is the pending Supreme Court case on Fourth Amendment rights of government employees in their text messages created using government-provided text pagers. I?ve read the brief, and it makes a surprisingly narrow argument: I suspect that this narrow framing will make Quon a significantly less important case than it otherwise could have been.

To recap, the issue in Quon is whether city employees violated the Fourth Amendment rights of Jeffrey Quon, a SWAT sergeant who had been provided a pager by the city, when employees went to the pager service provider and obtained stored copies of text messages that Quon had sent using his pager. I think there are three basic issues at play in Quon: 1) Does an individual generally have a reasonable expectation of privacy in copies of his text messages stored by a third party service provider?, 2) If so, is that expectation of privacy eliminated in the specific facts of Quon given that he was a government employee who had been specifically notified that he had no privacy rights, and 3) If Quon did retain a reasonable expectation of privacy, is the search of his messages reasonable under the speical needs exception to the Fourth Amendment? (To be clear, these are my questions, not the formal questions presented.)

I was particularly interested in the first question, as it has tremendously far-reaching implications for how the Fourth Amendment applies to e-mail and other contents of communications sent over computer networks. To put it simply, Question 1 is the question of interest to those of us who follow how the Fourth Amendment applies to new technology; Questions 2 and 3 are of interest to those interested in the general privacy rights of government employees.

I raise this context because the petitioner?s merits brief in Quon simply ignores the threshold first question. Its argument mostly assumes that there are Fourth Amendment rights in text messages generally, but then says that even if this is true, Jeffrey Quon sure didn?t have any of those rights given the specific facts of his case. The only mention of the first question comes on page 29 of the brief, when it notes the first question in passing:

Whatever expectation of privacy a sender or recipient of text messages on a government employer?s equipment can ever legitimately have?if any [fn3] ?certainly none existed within the operational realities of the Ontario Police Department.

[fn3] In its amicus brief supporting rehearing en banc, the United States pointed out the serious analytical errors in the Ninth Circuit?s conclusions, arguing, among other things, that there generally is no reasonable expectation of privacy in text messages sent and received. App. 163?180.

The rest of the brief hammers questions 2 and 3, and to my mind quite persuasively.

On the whole, I think it was a wise strategic choice not to argue the first question. The Court granted the case because of Judge Ikuta?s dissent, and her dissent didn?t get into these issues. The facts are very strongly in the petitioner?s favor on the later questions; the Ninth Circuit?s ruling that the operational realities of the workplace didn?t eliminate Quon?s Fourth Amendment rights was an outlier. This framing of the issues lets the Court correct the outlier without going into the other issues.

Further, the Justices probably don?t have any particular interest in speaking on Question 1, as the Ninth Circuit panel decision in Quon was the first circuit to address the issue. Given the rapidly changing technology and the difficult Fourth Amendment terrain, the wise course is to stay out of the issue for now (even though I think there is a correct answer, that a user does normally have Fourth Amendment rights in his text messages). Finally, the City is on much easier ground arguing this case as an uncontroversial no-privacy-for-SWAT-team-officers case rather than a controversial no-privacy-for-text-messages case. So on the whole, it?s a wise choice, even if it does mean that the Court is much less likely to get into the technology issues that I personally find so interesting.

Full post as published by The Volokh Conspiracy on February 09, 2010 (boomark / email).