Federal Judiciary

Analysis: Hints on texting privacy

By Akin Gump Supreme Court Practice Group

Analysis

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 impact for workers in private offices and factories.)

(NOTE TO READERS: This post will be expanded later today.)

Full post as published by SCOTUSBLOG on June 17, 2010 (boomark / email).