Legal Commentary

Some Thoughts on the Reply Brief in City of Ontario v. Quon

By Orin Kerr

The Reply Brief in the Court?s only major Fourth Amendment case this term, the text-messaging case City of Ontario v. Quon, has now been filed and is available here. Here are a few thoughts on it.

(1) The parties focus significant attention on the Stored Communications Act, somewhat to my surprise. The Stored Communications Act (SCA) is the federal statute that governs access to e-mail and the like: The Quon case was originally litigated under both the SCA and the Fourth Amendment. Quon argues that the SCA helps create a reasonable expectation of privacy in the stored text messages. By creating statutory privacy rights, Quon argues, the SCA helped make any expectation of privacy ?reasonable.?

I don?t think that?s a persuasive argument, with a possible caveat I?ll get to in a minute. As a general rule, I think statutory privacy laws have to be considered independently from the Fourth Amendment: The creation of statutory privacy laws cannot make an expectation of privacy constitutionally reasonable, and the absence of them cannot make an expectation of privacy constitutionally unreasonable.

The problem with the argument that statutory privacy laws can create a reasonable expectation of privacy is that it is only made when Congress legislates and intentionally rejects the standard of Fourth Amendment protection and opts instead only for lesser, sub-Fourth Amendment protection. After all, if Congress created a right coextensive with the Fourth Amendment, the Fourth Amendment rule would never be reached: Under the principle of Constitutional avoidance, courts generally would resolve cases on statutory grounds rather than constitutional ones. Thus the argument for statutory creation of Fourth Amendment rights is invoked only when Congress has enacted privacy protection less than the equivalent Fourth Amendment standard. This creates a problem, as the argument then becomes that Congress?s rejection of the Fourth Amendment standard but recognition of lesser privacy as a matter of statute should be read as forcing the courts to embrace the greater Fourth Amendment standard. That would be pretty odd, I think.

Plus, presumably it would create a two-way street: The Supreme Court would have to start looking to Congress to see if there is a statutory privacy law, and that if there is no such law, that should be evidence that no reasonable expectation of privacy exists even if the Court were otherwise inclined to recognize one. And what if Congress enacts a law giving sub-Fourth Amendment protection, the Supreme Court uses that to say there is Fourth Amendment protection, and then Congress, preferring no standard to the constitutional higher standard, repeals the statute? If the legislation really matters, then the Supreme Court presumably should have to rethink its earlier decision and likely reverse itself, right? And what if after the Court reversed itself, Congress reenacted its original law ? should the Supreme Court take that as a sign that the expectation of privacy is reasonable again, or only that Congress wants the Supreme Court to go away so Congress can have its modest level of statutory protection? I think the only way to avoid these problems is to say that statutory protections and constitutional protections are independent.

Now I said above that there was a possible caveat, and the caveat is this: The two parties in Quon both agree that Quon?s rights are governed by the government workplace rules of O?Connor v. Ortega, and specifically the standard of Justice O?Connor?s plurality opinion in that case. That matters because, as I have said before, Justice O?Connor?s plurality opinion offers a version of the reasonable expectation of privacy test for government workplaces that is simply different from how the test applies elsewhere. (The briefs unfortunately miss this point at times; they cite and rely on cases from the traditional setting together with cases applying the O?Connor plurality standard.) Once you agree you?re in O?Connor plurality-land, the key question becomes the policies and operational realities of the workplace, and becomes at least theoretically possible that background principles of federal privacy law are relevant to that. But this is only a possible caveat, not a real one, as there is a record from below as to what the policies and operational realities of the workplace are in this case. Background statutory privacy rules may shape that in some probably minor ways, but what matters is the factual question of the policies and the operational realities of the workplace actually are, not the legal question of how the privacy statutes are supposed to work. So in the end, I?m brought back to the earlier point: The SCA arguments shouldn?t matter to the resolution of this case.

(2) The tail end of the reply brief (pgs 28?34) focuses on the issue that I think is the really tricky question in the case: The rights of the other plintiffs who were communicating with Quon, a question I blogged about extensively here. The reply brief pretty mostly repeats the same argument as the merits brief: That the folks communicating with Quon really should have known that he had no privacy rights, and they shouldn?t have expected privacy communicating with someone who they should have known had no privacy rights. The reply brief also essentially adopts DOJ?s argument that Arch Wireless is the city?s agent, so the arrival of the text message at the computers of Arch Wireless is essentially ?delivery? of the text messages. As I explained before, I don?t think these arguments are persuasive: I?m sticking to my earlier view that the Court would be best off coming up with a way to avoid having to answer this question.

One related point: The Reply brief argues that everyone knows that government employees have no privacy rights in their text messages because everyone knows that government workplaces have policies that take away such privacy rights. I don?t think that?s right, though. My experience is a little dated, but back when I was at DOJ, from 1998 to 2001, I spent a lot of time talking to different government agencies about their workplace monitoring policies. I also participated in a lot of meetings on what DOJ?s policies should be. My overall impression from this experience is that workplace policies varied dramatically. Some government offices had policies that eliminated rights. Other government offices should have had such policies, but were so disorganized that they didn?t. Other offices opted to have much narrower waivers, and some had no waivers at all. See, e.g., Leventhal v. Knapek, 266 F.3d 64 (2d Cir. 2001) (Sotomayor, J) (concluding that a state DOT employee had a reasonable expectation of privacy in his workplace computer because there was no workplace policy eliminating rights or any practice of searching computers). Generalizations were hard to make: The government was so vast, and policies so office-specific, that you couldn?t generally know what the policy was going to be in any particular office.

Full post as published by The Volokh Conspiracy on April 13, 2010 (boomark / email).