Supreme Court Threads The Needle On 4th Amendment For Stored Communication

from the privacy-please dept

The Supreme Court today ruled in the Quon case, on the question of whether or not it was legal for a police department to look at the text messages sent by an officer (using a department issued device) as a part of an audit. The big question was whether or not communications that are stored elsewhere are subject to 4th amendment protection. This is a tricky question, and it looks like the Supreme Court effectively decided to punt on it by purposely avoiding the 4th Amendment issue, and ruled on a separate issue (saying that it was legal for an employer to look at an employee's messages). But on the specific 4th Amendment issue, the court was clear that it was better to look at the specifics of each situation, rather than creating a hard and fast rule:
The Court must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer. The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear. See, e.g., Olmstead v. United States, 277 U. S. 438 (1928), overruled by Katz v. United States, 389 U. S. 347, 353 (1967). In Katz, the Court relied on its own knowledge and experience to conclude that there is a reasonable expectation of privacy in a telephone booth. See id., at 360-361 (Harlan, J., concurring). It is not so clear that courts at present are on so sure a ground. 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 devices.
However, the court did hint, that, despite the claims of some lawyers, 4th Amendment privacy rights can and should be extended to cover communications stored via third parties, since it would seem that there is a reasonable expectation of privacy.
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.
That said, it also argues the other side would be that since those devices are so cheap, anyone who wants to do personal things can just use their own, rather than use an employer's device. But, either way, for now the Supreme Court has officially punted on the 4th Amendment question.

Filed Under: 4th amendment, privacy, quon, stored communications

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  1. icon
    MD (profile), 18 Jun 2010 @ 8:20am

    Re: Re: Re: I didn't see this as a 4th amendment issue

    @Anonymous Coward
    Correct me if I'm wrong, but the issue in Katz had nothing to do with the actual method of communication. The police used a listening device on the EXTERIOR of the booth to listen in on his conversation while he was placing an illegal bet. The SC ruled that the phone booth was a private place since he had shut the door prior to making the phone call and the use of the device breached his privacy.

    @Joseph Durnal
    I feel this IS a 4th Amendment issue given the state of technology and society's expectations.

    The way the logic of previous rulings has been thus far is that any communications that are stored somewhere by a 3rd party are no longer private. Also, communications aren't private in the sense that your ISP/phone provider/etc need to forward the data to billing in order to process the bills. Again, a 3rd party.

    The way we txt/email/chat these days, everything pretty much goes through a 3rd party. In this case, given the logic the court has used thus far, its not unreasonable to draw the conclusion that any data sent via a company owned device is accessible to the company as well. Thus, there is no "reasonable expectation of privacy."

    I'm not suggesting this is right or wrong. Technology is leaps and bounds ahead of law and lawmakers. Perhaps in this day and age, the way communications are handled, SOME 3rd parties should be within the protective bubble of "reasonable expectation of privacy." Society EXPECTS that the raunchy txts/emails sent to significant others are "private" or we probably wouldn't be sentat all.

    Essentially, the slow pace that the law is taking to catch up with the day-to-day technology we use is eroding our rights.

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