Legal Commentary

Thoughts on the Oral Argument in City of Ontario v. Quon

By Orin Kerr

I was at the Supreme Court this morning for oral argument in City of Ontario v. Quon, the Fourth Amendment text messaging case. Here are a few thoughts from what I heard over the speakers from the Lawyer?s Lounge:

1) Based on the questions, the strongest proponent of Fourth Amendment protection in this case appeared to be Chief Justice Roberts. Yes, seriously. Chief Justice Roberts jumped out of the gate with very critical questions for the city?s lawyer, and offered mostly very friendly questions to the lawyer for Quon. My sense was that Roberts seemed to think that if you have a pager, and you?re communicating using it, it?s yours and you have privacy rights in those communications ? subject to an allowance for reasonable searches, of course, but privacy rights nonetheless.

2) There was a lot of discussion of the Stored Communications Act, and whether breach of a statutory privacy law essentially created or at least helped make the case for a Fourth Amendment violation. I don?t think there was a real resolution of the issue, or that enough Justices tipped their hand on this, but there was a lot of discussion of it. As I?ve written here before, I don?t think the statutory questions should be part of the constitutional inquiry: Especially so with a hypertechnical statute like the Stored Communications Act. But there were at least some Justices (including Roberts, if I recall correctly) who seemed to think SCA violations were relevant to whether there was a constitutional violation.

3) More broadly, there was lots of discussion on the meaning of ?reasonable expectations of privacy? in new network technologies. As Justice Alito noted, this is a new world of computers and network communications, with facts really different from what we?re used to: What do we look to in order to say when an expectation of privacy is ?reasonable?? The Justices spent some time on analogies to postal letters, as well as possible differences among postal letters and text messages and e-mails. (As I noted last night, my own answer to these questions appears in this new article.)

4) Justice Breyer focused on the reasonableness of the search (Step 2 of the O?Connor test), suggesting that even if Quon and the others had a reasonable expectation of privacy in their communications, the City acted reasonably in accessing the pager transcripts and looking through them. That might end up being the best narrow way to resolve the case: If the parties all agree that we?re in O?Connor-reasonableness-land, and the search is deemed reasonable under that standard, then that would seem to resolve the case without getting into the issue of notice or expectations of privacy in text communications generally.

Full post as published by The Volokh Conspiracy on April 19, 2010 (boomark / email).