Federal Judiciary

A pager as an open book

By Akin Gump Supreme Court Practice Group

Analysis

Justice Ruth Bader Ginsburg may have spoken for the entire Supreme Court on Monday when she offered a simple scenario: if the government hands out personal messaging devices to its workers, calls a meeting to put limits on their use, and tells the workers that their e-mails are going to be monitored, why would the employees think their messages were private?  The obvious answer would seem to be that it was not reasonable for them to think that.  Since there seemed little dissent from that proposition, a major case on electronic privacy in the workplace could well end with a Digital Age victory for the government as employer.

Sgt. Jeff Quon of the Ontario, Calif., police department and his texting partners drew a little sympathy from the Justices during the oral argument in Ontario v. Quon (08-1332), but it was nowhere near enough to indicate that they will gain a constitutional right to privacy in the e-mails they exchanged on the sergeant’s SWAT team pager.  While the Court did not seem tempted to rule that a government employee never has any right to expect privacy in any message on a government-provided pager, it might go far to limit that right, especially in police departments or other agencies where the workers are given the pagers mainly for emergency use.

What mainly seemed to overwhelm Sgt. Quon’s hopes for privacy were the facts in the case, at least as the Court’s members filtered through those facts and emphasized the ones that ran against his privacy claims.  Chief Justice John G. Roberts, Jr., did suggest that, from Sgt. Quon’s point of view, he may well have gotten at least mixed signals from a superior that suggested to him that what he texted with wife, girlfriend and team colleague might be shielded from supervisors’ eyes.  But, as the lawyer for the city of Ontario reminded the Chief Justice, whether that hope on his part had constitutional protection did not depend on what he believed, but rather on what society was prepared to endorse.  And, from what most Justices said, it hardly seemed that society is willing to let a SWAT team member use a pager without monitoring.

Full post as published by SCOTUSBLOG on April 19, 2010 (boomark / email).