Privacy, SCOTUS, Supreme Court, Technology

Text-ual Analysis at the Supreme Court

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Yesterday, I paid a visit to the Supreme Court to sit in on oral argument for City of Ontario v. Quon. The case is about a California SWAT officer who alleged that his privacy and constitutional rights were violated when his superiors reviewed the messages he sent out on his work-issued pager. A good number of them had more to do with scheduling sex romps with his girlfriend and estranged wife than housing raids.

The facts in the case make it complicated enough to warrant SCOTUS review. But what seemed especially complicated to The Nine were the technological issues.

Stepping into One First Street is like stepping back into the 1950s. No Blackberries or electronic devices allowed. No cameras (in spite of C-SPAN’s fervent wishes). The most technologically advanced items in the courtroom are the microphones. So it seemed appropriate then that many of the justices’ questions strayed away from reasonable expectations of privacy and proper searches, and got into how exactly texting works…

If you were to split the Court into two categories — The Hip Justices and The Hip-Replacement Justices — Chief Justice Roberts would fall into the former category. Yet DC Dicta (via WSJ Law Blog) dinged him for asking about “the difference between a pager and an email.”

The quote on its own is laughable, but in my recollection, JGR was asking about the difference in policy and protocol for pagers and emails in their treatment by the City of Ontario police department. Nice try, DC Dicta, but 55-year-old Roberts is a former Hogan & Hartson partner; he likely still sleeps with a Blackberry on his bedside table.

Roberts, in fact, displayed a greater concern for privacy in the digital age than his fellow justices, remarking that employer policies on the right to review emails and text messages are like the fine print on parking garage tickets — it doesn’t apply because nobody reads it. He stated that what’s “reasonable” depends on the age of the users and how comfortable they are with these technologies.

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It’s fair to say that his fellow justices are less comfortable. Justice Kennedy, 73, doesn’t appear to be a frequent SMSer. From DC Dicta:

At one point, Justice Anthony Kennedy asked what would happen if a text message was sent to an officer at the same time he was sending one to someone else.

“Does it say: ‘Your call is important to us, and we will get back to you?’” Kennedy asked.

Well, Justice Kennedy may not be able to make your phone blow up, but AMK did display a keen understanding of the SCA, raising the issue of whether the police department should have been able to get access to the pager transcripts at all.

Justice Alito, still on the Hip side at 60 — “hip” is relative at One First Street — pointed out that there are lots of new technologies and that electronic communications are stored all over the place in the modern age. “It’s unclear what is private and what is not,” he said. “It’s a little different from garbage in front of the house.”

Indeed it is.

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Justice Scalia also struggled with the whole texting thing.

Justice Antonin Scalia wrangled a bit with the idea of a service provider.

“You mean (the text) doesn’t go right to me?” he asked.

Then he asked whether they can be printed out in hard copy.

“Could Quon print these spicy little conversations and send them to his buddies?” Scalia asked.

As Above the Law readers know, it is possible for spicy little conversations to make the rounds.

The justices weren’t the only ones confused by this new-fangled pager technology. Quon’s lawyer, Dieter Dammeier, didn’t know whether deleting a message on his pager would erase the message from the wireless company’s transcript.

As usual, Justice Clarence Thomas had nothing to say. Which is too bad, because he brings some digital savvy to the bench. He reads blogs, for example.

And during CT’s recent appearance on the Hill, Congressman Ander Crenshaw recited a quote — “Versatility of circumstance often mocks the natural desire for definitiveness” (52:30 minute mark) — and asked Justices Thomas and Breyer whether it was something Felix Frankfurter had written. Justice Thomas responded: “Google. You should Google it. You can Google it on your Blackberry.”

Since Justice Thomas doesn’t like to ask questions, maybe he should be allowed to bring his smartphone into the courtroom, and live-Tweet his thoughts during oral argument.

Our Tech-Savvy Supreme Court [WSJ Law Blog]
Technical difficulties at the Supreme Court [DC Dicta]
Thoughts on the Oral Argument in City of Ontario v. Quon [Volokh Conspiracy]
The Supreme Court talks about an employee’s right to private sexting [True/Slant]

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