Analysis: Hints on texting privacy
on Jun 17, 2010 at 12:38 pm
Analysis (updated 5:28 p.m.)
Justice Antonin Scalia dismissed it as unnecessary and even unhelpful “excursus,” but the Supreme Court on Thursday gave the American people — increasingly devoted to their electronic communication devices — some broad hints that the Justices are sensitive to claims for protection for the privacy of exchanges in the Digital Age. The Court said it was avoiding any broad new constitutional declarations on texting privacy, but nevertheless justified the failure to do so by making clear that the Justices take that issue very seriously, and thus are hesitant about getting it wrong while the technology — and the cultural habits — are still developing.
Justice Scalia, though typically exaggerating the negative consequences of comments with which he disagreed, was probably close to correct in suggesting that lower court judges and litigating lawyers will focus on the privacy discussion the Court allowed itself to make, rather than the specific legal outcome, in City of Ontario, et al., v. Quon, et al. (08-1332). Privacy is a big issue in electronic communications, especially via cell phones and similar devices, and ultimately the Supreme Court is going to have to weigh in on that issue in a definitive way. Judges and lawyers, therefore, will try to anticipate that day in the meantime, as they go forward with privacy cases in the months ahead.
It is important to stress that the part of the privacy equation that was at issue in the Quon case is a claim of privacy against government intrusion into personal exchanges — that is, whether the Fourth Amendment’s guarantees of privacy from government officials and agencies are to apply to the electronic communications of public employees. (The Fourth Amendment does not deal with questions of privacy for texting workers in the private sector, but how the courts deal with Fourth Amendment issues in this realm may well have an influence on managements in their dealings with texting workers in private offices and factories.)
The Court’s Quon decision permits government supervisors to examine the private texting of their employees but only if the following conditions have been met: the cell phone must be provided by the agency itself, the worker must have been told in advance that any messages they send on that equipment would be subject to auditing by management, the examination of the transcripts must be for a work-related purposes — such as determining whether the device was being used wrongly — and not to gather evidence of criminal wrongdoing, the review of the transcripts must be based on some grounds to suggest misuse, and management would be wise before looking at transcripts to delete messages sent when the worker was off duty. In checking up on workers’ use, the Court added, management need not use the “least intrusive” method of review.
Those, the Court made clear in the opinion written by Justice Anthony M. Kennedy, are the essential ingredients of a government intrusion into texting by workers that will satisfy the Court’s prior Fourth Amendment “controlling precedents.”
The Quon case, of course, had reached the Court amid a widespread perception that the Justices could or would use it to bring Fourth Amendment concepts into the Digital Age, perhaps providing some broad new declarations on the scope of personal electronic messaging, at least for government employees.
But, when the final decision emerged Thursday, the Court stopped far short of any such declarations. Kennedy’s opinion commented: “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 communications devices….The judiciar risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear….At present, it is uncertain how workplace norms, and the law’s treatment of them, will evolve.”
In the course of explaining its use of that cautious approach in the Quon case, the Court suggested some of the cultural implications that it found already to be present. Some employers, it notes, expect or at least tolerate personal use of pagers and cell phones at work. The law is beginning to respond to such developments with some states passing laws requiring that workers be told that their texting will be monitored.
In one of the more expansive conjectures indulged by the opinion, the Kennedy opinion suggested that cell phones and pagers are now so ubiquitous in society that “some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification.”  That, Kennedy added, “might strengthen the case for an expectation of privacy.”
By contrast, Kennedy went on, the mere fact that so many people have and use such devices and their comparatively lower price now may mean that employees can readily obtain one on their own, without using one provided by management, and thus have a device for personal communications.
Because of such considerations, the opinion stressed, “it is preferable to dispose of this case on narrower grounds.” Applying “settled principles,” it rejected the Fourth Amendment challenge of a police SWAT team member whose personal use of his government-provided pager led to his superiors’ examination of the transcripts of his messages, finding many personal, non-work messages, including some sexually explicit communications.
Justice Scalia, parting company with the majority on its musings about texting privacy, looses some of his customary sarcasm. “To whom,” he wrote,”do we owe an additional explanation for declining to decide an issue, once we have explained that it makes no difference?”  That “excursus,” he said, “seems to me exaggerated. Applying the Fourth Amendment tonew technologies may sometimes be difficult, but when it is necessary to decide a case we have no choice.”  The commentary, he said, was also “opaque,” and would only cause courts trouble in the future as judges and lawyers to try to apply what they think the Court has said on the broader constitutional implicatins. That, he suggested, was entirely avoidable, b ecause the Court had said much more than it should have.
