Today the Supreme Court decided City of Ontario v. Quon, a very important privacy case regarding a California SWAT officer who argued that the text messages sent on his work pager were entitled to privacy. The case has gained fame for two reasons — because oral argument revealed that the Supreme Justices are not very tech savvy, and because journalists and Court watchers saw this case as a sign of whether we’re entitled to privacy in our communications and emails on work devices (relevant to everyone who uses a work-issued Blackberry for occasional personal email).
The SWAT officer, Sergeant Jeff Quon, is out of luck. The Court decided that the police department’s search of his steamy text messages was reasonable (and reversed the Ninth Circuit, which had held otherwise). Today’s SCOTUS ruling led to headlines like this one from Joan Biskupic at ABC News: High court: Texts on government gear not private.
Justice Anthony Kennedy, who wrote the Court’s opinion [PDF] in the case, hoped not to see headlines like that….
Justice Kennedy was very hesitant about the scope of today’s decision. He wrote:
Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. At present, it is uncertain how workplace norms, and the law’s treatment of them, will evolve.
That sounds like a cry for help to me. “Please, Congress, update the law!”
More hedging from AMK:
Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self identification. That might strengthen the case for an expectation of privacy. On the other hand, the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cell phones or similar devices for personal matters can purchase and pay for their own. And employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to
the extent that such policies are clearly communicated.
Finally, Kennedy tries to warn people not to overestimate the meaning of the Court’s decision today:
A broad holding concerning employees’ privacy expectations vis-à-vis employer-provided technological equipment
might have implications for future cases that cannot be predicted. It is preferable to dispose of this case on narrower grounds…
Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication
Justice Antonin Scalia, who is famously skeptical of the “right to privacy,” wrote his own concurring opinion. He was annoyed by his fellow Justices’ reluctance to make a big statement about our electronic privacy in the workplace:
The Court’s implication… that where electronic privacy is concerned we should decide less than we otherwise would (that is, less than the principle of law necessary to resolve the case and guide private action)—or that we should hedge our bets by concocting case-specific standards or issuing opaque opinions—is in my view indefensible. The-times-they-are-a-changin’ is a feeble excuse for disregard of duty.
But the times, they are a-changin’, and the law needs to change too.