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I’m With Scalia on Quon

This past week, after reading and re-reading the Supreme Court’s decision in City of Ontario, California v. Quon several times, I’ve come to a conclusion that is surprising for me: I am in agreement with Justice Scalia, not the majority, when it comes to Quon.  In fact, I think Scalia hit it right on the head when he wrote in his concurrence describing the majority opinion:

“…In saying why it is not saying more, the Court says much more than it should.”

The Quon court clearly wrestled with whether or not to address the big question being posed in this case – whether employees have a reasonable expectation of privacy in certain electronic communications i.e. messages sent through a government employer-issued pager.  This intellectual wrestling, and the majority’s thoughtful debate on the role of technology in the workplace are particularly revealing.

For instance, the Court noted that it’s not just technology that’s evolving rapidly – it’s society’s view on what is acceptable behavior vis-à-vis these technologies that is also changing at a rapid pace.  The Court considered the position put forward in the amicus brief submitted by the ACLU, EFF, CDT and others – that in today’s workplace, employers expect and tolerate the personal use of office equipment and technology by employees (and therefore, employees should have a reasonable expectation of privacy in personal messages sent through an employer’s equipment or technology).  In contrast, the Court also contemplated the efficiency of a rule that reserves office equipment and technology for work use only – since mobile phones are now affordable and widely used, shouldn’t employees be required to purchase their own device for personal use at work?   Unfortunately, the analysis stopped here; the Court for instance didn’t distinguish between mobiles phones (for voice and text) which remain affordable vs. smartphones (for email and webmail) which remain fairly expensive.

In the end, the Court chose to sidestep the important question of whether employees have a reasonable expectation of privacy in electronic communications made in the government workplace. It concluded that it needed to “proceed with care” in determining the issue; it also cautioned the judiciary against “elaborating too fully” when evaluating “the Fourth Amendment implications” of technology in the employer-employee context.  And then, most surprisingly, the Court admitted that unlike past decisions (specifically referencing the phone booth in Katz), it could no longer rely on its “own knowledge and experience” to conclude that there was a reasonable expectation in text messages sent via a government-owned pager.  Wow.  While Supreme Court justices were using phone booths in 1967, they aren’t using their pagers (or mobile phones) to send text messages in 2010.  Is technology advancing at a rate that is too fast for the highest court in the land?  Opportunities to decide important issues like this come before the Court only so often.  The disapproval in Justice Scalia’s concurrence is hard to miss:

“Applying the Fourth Amendment to new technologies may sometimes be difficult, but when it is necessary to decide a case, we have no choice.”

Yet by trying so hard to say nothing, the Court actually says something fairly significant.  By dithering over whether to use the Court’s precedent in O’Connor v. Noriega, but then using it anyway to determine that Jeff Quon had a reasonable expectation of privacy in text messages he sent from his work pager, the Court has – as Scalia puts it – “inadvertently” boosted the “operational realities” standard and case-by-case approach of the O’Connor court (the Court ultimately determined that even though there was a reasonable expectation of privacy, the City’s search was reasonable).  The facts here are telling – in one month, Jeff Quon, a member of the SWAT team at the Ontario, California police department sent or received 456 messages, of which only 57 were work-related.  These messages were transmitted via a pager that Jeff Quon received from the City so that he and fellow SWAT team could “mobilize and respond to emergency situations.”  In fact, the case started began when the City – faced with recurring overages for Quon and another employee – requested text message transcripts from the City’s wireless provider to determine whether the City’s current limit for text messages needed to be raised.

Regardless, it’s likely that the O’Connor rule will have more of an influence on privacy – and workplace privacy in particular – after the Quon decision.  Scalia insists that the Court’s ruling in Quon will automatically drive lower courts to the “operational realities” of the O’Connor test.   Perhaps he’s right – but a case-by-case approach in privacy analysis is almost inevitable in the absence of a federal privacy framework and bright line rules.   Context will continue to be a key part of the privacy analysis.  It’s already an important part of the United States’ “sectoral” approach to privacy.  For instance, personal data is even more sensitive when it’s being handled for medical purposes (see HIPAA for more details).  Similarly, there’s been a lot of concern about geo-location technologies recently – even though these technologies have been around for years, it is their emergence on mobile phones, and the ability to combine a user’s profile data with their geo-location data, that has raised privacy concerns.

Scalia also predicts lots of litigation around the question of whether employees have a reasonable expectation of privacy in the workplace (what did the workplace policy say, was there one, etc). That may be right – but it could also just be a natural evolution of the case-by-case approach outlined above – a lack of a bright line rule will always result in lots of litigation about what the standard should be.  There are, however, are at least two counseling gems to be found in Quon that are worth considering in anticipation of such litigation.

  1. Make sure your company’s privacy policy covers all types of electronic communications that occur on work equipment. The City of Ontario had a written policy that covered email, computer and Internet use – but didn’t explicitly cover pager use (although Jeff Quon’s boss did attempt to extend the written policy verbally to pager use in staff meetings).  And remember, the Court did find that Jeff Quon had a reasonable expectation of privacy in the text messages sent via his work pager.
  2. Make sure your company’s work policy matches up to its actual practice. Even though the City issued pagers to Jeff Quon and other SWAT team members with the understanding that they were intended for work use, the City sent a contrary message when it allowed employees to use those same pagers for personal use (so long as the employee picked up the extra charges for exceeding usage).  To send a clear message, and match its written policy to actual practice, the City should have banned personal use of the SWAT pagers altogether.

Of course Scalia was pushing for a bright line rule in this case – one that would have applied the Fourth Amendment to all employers – not just government.  At a time when companies are eager for privacy guidance, are bright line rules for workplace privacy needed?  This is the only part of the Scalia concurrence that I’ve struggled with.  On the one hand, we don’t want to have inflexible standards that ignore the realities of the present-day workplace.  On the other, having a rule that says there is no reasonable expectation of privacy when the workplace privacy policy says otherwise (assuming that policy is communicated properly), could be very helpful for compliance – especially when you consider the companies struggling to navigate the maze of court rulings, FTC rules and guidance, and sectoral laws that comprise US privacy law.  The need becomes even more compelling as once again, we are faced with the real possibility that Congress will not pass a federal privacy law this year – even as the FTC looks to Congress for guidance on how to shape a regulatory framework around privacy and security.

Which comes to my final point of agreement with Scalia.  When it comes to Quon, the Court chose not to address the important question – in short, they punted.  Or as Scalia puts it:

“… The-times-they-are-a-changin’ is a feeble excuse for disregard of duty.”

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