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
    Overtkill (profile), 18 Jun 2010 @ 3:18pm

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

    I concur. People need to realize that everything they due involving any digital communications device, be it a computer, cell phone, etc. should expect that their communications are logged to some degree.

    When the issue comes up over using Corporate or Department equipment for private use, their expectations for privacy do not exist. As an Admin, one of my tasks is parsing firewall logs to check for everything from the employee who spends all day on the internet surfing, to those who feel its okay to view pron (not misspelled) or download illegal software on company time, with company bandwidth, and company devices. Be it Blackberry, Instant messengers, or pretty much EVERYTHING. Its all logged. Even attempts by these people to circumvent the logs by trying to encrypt from within the network, to an external proxy (VPN, or other).

    Any admin worth his salt will easily find problem people. Most of us pray that when we hit the logs, we find nothing and everyone has a good day. I know I do. Though I have had to be the unfortunate source of bad news that led to many firings, and had to provide the evidence as well. You see the side of people that they wouldn't show to anyone. It sucks to see it, and it takes the right kind of person (admin) to be discretionary or secretive about the habits of others. A sense of honor I guess, in that 99% of what an admin knows will never be spoken.

    I'm rambling. I wanted others to know the thought process that many admins (myself, many others) have when we do these tasks. :)

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