Legal Commentary

Supreme Court Grants Cert on Fourth Amendment Protection in Text Messages

By Orin Kerr

The Supreme Court announced this morning that it has granted cert in City of Ontario v. Quon, a case on whether a city employee?s Fourth Amendment rights were violated when city employees accessed text messages he sent on a city-provided pager when the city?s formal policy was that he had no privacy rights in his text messages but he had been told to the contrary by his boss.

The grant is good for business, but I find it rather odd. The basic issue of Fourth Amendment protection in text messages is splitless: Quon was the first court of appeals case to address the issue. Further, the question of how to deal with mixed messages of privacy in the context of public employee Fourth Amendment rights is splitless and factbound. That leaves me wondering why the Court was interested in the case. Indeed, when I was asked by a reporter recently whether I thought the Court might take the case, I confidently answered ?no.? Factbound, splitless. I recommend DENY.

So what explains the grant? It must be that old Ninth Circuit magic. The opinion below was by a liberal Ninth Circuit panel: Wardlaw joined by Pregerson and a district judge. And then the opinion drew a vigorous dissent from denial of rehearing en banc by conservatives ? Ikuta, O?Scannlain, Kleinfeld, Tallman, Callhan, Bea, and N.R. Smith ? who accused the majority of getting it wrong and making the sky fall on how to apply O?Connor v. Ortega, 480 U.S. 709 (1987), the leading case on Fourth Amendment rights in the public employment setting. That one-two punch is hard for the Supreme Court to resist. The dissent from denial of rehearing en banc becomes the cert petition. So I suspect the Court granted based more on the dissent from denial of rehearing than anything else.

In my view, though, Quon is a problematic vehicle to address the concerns of the Ninth Circuit dissenters. That?s true for two reasons. First, it?s not entirely clear whether the O?Connor v. Ortega framework should apply in the first place. O?Connor articulated a sui generis Fourth Amendment framework for Fourth Amendment rights in the government workplace. But the text messages in Quon were not obtained in a government workplace: They were obtained from a private provider, Arch Wireless, that had contracted with the city. To me, that raises the legitimate question of whether Fourth Amendment rights in the text messages should have been properly analyzed under O?Connor v. Ortega at all. Maybe it should have been, but it?s an important threshold question given that the whole case seems to boil down to how to apply O?Connor.

Second, if you do analyze the text messages under O?Connor v. Ortega, you then need to consider how the O?Connor framework should have impacted the core question of Fourth Amendment rights in text messages. It?s one of the complications underlying Quon that the litigants and panel glossed over, but that now may become important. The problem is that the O?Connor framework is sui generis: The basic framework for determining when a government employee has a reasonable expectation of privacy in a government workplace is simply different from the framework for determining whether a normal person has a reasonable expectation of privacy in a workplace or any other place. (I blogged on the differences here, among other places.) So that makes Quon a difficult case to reach a holding on privacy rights in text messages generally: If O?Connor applies, the Fourth Amendment test in the public sector workplace is so different that it won?t necessarily shed any light on Fourth Amendment rights in text messages generally.

Anyway, sorry for all the Monday morning certbacking. But I do think this is an odd grant.

(By way of full disclosure, I have a vague recollection that what when Quon was in the district court, back around 2004 or so, I spoke very briefly to attorneys on both sides of the case about some of the novel issues raised in the case. I think I mostly discussed the Stored Communications Act issues; I don?t recall whether I also discussed the Fourth Amendment questions on which the Court granted.)

Full post as published by The Volokh Conspiracy on December 14, 2009 (boomark / email).