9th Circuit, SCOTUS, Sex, Supreme Court, Technology

SCOTUS Takes on Sexting

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As Quinn Emanuel folks are well aware (“CHECK YOU EMAILS”), there are many employees out there who are expected to be chained to their work at all times. The BlackBerry goes to bed with you, and not just because of its vibrate function. Sometimes the bedroom talk makes its way onto the BlackBerry.
Such was the case for Jeff Quon, a SWAT officer in California. He was fired after his lieutenant read hundreds of steamy text messages sent from Quon’s work pager. Quon sued the police department, arguing that the search of his texts was a violation of his Fourth Amendment rights.
Funny, we didn’t know SWAT officers even knew that there was a Fourth Amendment.
Now SCOTUS will be weighing in on privacy rights for personal communications on work-issued devices. Emily Bazelon sketches out the case’s path to One First Street over at Slate:

In June 2008, the U.S. Court of Appeals for the Ninth Circuit agreed with [Quon]. He had a reasonable expectation of privacy, the court said, given what his supervisor told him about paying for extra messages — the department’s “operational reality.” The court also found that there were other, less intrusive ways for the police chief to figure out whether Quon was frittering away his time: Warning him ahead of time to quit sending so many messages, asking him to count the characters himself, or asking him to cross out the personal parts before the department reviewed them.

This ruling, by Judge Kim McLane Wardlaw for a panel of three judges, implicitly recognizes that company pagers and e-mail accounts often turn into personal ones.

Should Quon be protected against the eyes of the boss, and in this case the law, reading the responses to “What R U wearing?”


Jessica Dweck at DoubleXX says Sotomayor might swing the court to say no.

In a 2001 opinion [PDF], then-Second Circuit Judge Sotomayor rejected a Fourth Amendment challenge brought against an employer for ransacking a worker’s computer. She concluded that the search was reasonable due to the employer’s “need to investigate allegations of misconduct as balanced against the modest intrusion caused by the searches.” By framing the issue as a balancing of interests and privileging the employer’s ability to discipline its workers above the employee’s constitutional protection against warrantless searches, Sotomayor dealt a crushing blow to digital privacy rights. The parallels with the cop case are obvious, and the news this week does not bode well for the longevity of the Ninth Circuit’s ruling.

Over at the New York Times’s Room for Debate blog, we suggested that employees use their own phones for sending sexy SMSes. George Washington law professor and Volokh contributor Orin Kerr agrees:

I believe privacy will be affected strongly by the devices like the iPhone. Smart phones are changing everything. They let employees carry the entire Internet with them. As smart phones get better and better, employees will just take their communications off their employers’ networks entirely.
These technologies will liberate employees from reliance on their employer network and go a long way to giving employees more workplace privacy. But if history is any guide, that will last only until the next technology comes along that swings the pendulum back in the other direction.

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At this point, we assume that all you Biglaw types already have a BlackBerry you use for work, and a separate device you use for downloading semi-aquatic mammalian donut porn. A sage piece of advice from your Above the Law editors is to beware of sexting in general. You never know where it might wind up.
No More Sexting With Sotomayor on the Court [DoubleXX]
The YouTube Bully and the Sex-Messaging Cop [Slate]
Your Boss and Your BlackBerry [Room for Debate/New York Times]

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