The California courts are in the news this week with two cases at the perilous frontier of cyberlaw. Perilous because, as the made-up word cyberlaw suggests, judges are just beginning to apply traditional constitutional rights in the scenarios posed in these cases: high-school bullying on YouTube in one and sexually explicit text messaging in the workplace in the other. In both instances, the courts have so far come down on the side of defending the individual rights at stake. The question is whether these decisions create a rule that's workable for employers and schools, which have to manage their workers and students long after the judges are gone.
Before Jeff Quon got a pager from the Ontario Police Department, where he's a sergeant, he signed a blanket statement that he had he had "no expectation of privacy or confidentiality" when using city equipment for e-mail or the Internet. But then his supervisor put in place an informal policy that undercut the official one. The supervisor told cops who had the pagers that they could send 25,000 characters worth of text messages a month and then after that, pay for the extra messages—and if they did, avoid an audit. Quon went above the character limit a few months in a row, paying each time. Then his chief started to wonder about whether Quon was wasting time on the job and asked the pager service for the texts. It turned out that lots of them were notes about sex Quon had written to his girlfriend. Quon sued, arguing that the search of his texts was a violation of his Fourth Amendment protection against unreasonable searches at work.
In June 2008, the U.S. Court of Appeals for the Ninth Circuit agreed with him. He had a reasonable expectation of privacy, the court said, given what his supervisor told him about paying for extra messages—the department's "operational reality." The court also found that there were other, less intrusive ways for the police chief to figure out whether Quon was frittering away his time: Warning him ahead of time to quit sending so many messages, asking him to count the characters himself, or asking him to cross out the personal parts before the department reviewed them.
This ruling, by Judge Kim McLane Wardlaw for a panel of three judges, implicitly recognizes that company pagers and e-mail accounts often turn into personal ones. Sometimes, that saves employees' time: If I'm not toggling back and forth between my Slate e-mail account and Gmail, my day is more streamlined (or so I tell myself). If your boss says you can use company technology for your own business, then you should be safe from unnecessarily intrusive searches—even if he's contradicting some official blanket disclaimer in which you signed away your privacy rights without really paying attention.
But if you're an employer, you're left with the worry that a supervisor's informal promise can undo the diligent work of your disclaimer-drafting lawyers. The police department thought it was covered with its statement that employees could expect no confidentiality in using the city's technology, only to be undermined by a side deal intended to pay for the texts. In the 9th Circuit, Judge Wardlaw's ruling for the panel caused a to-do. The full circuit voted on whether to rehear the case, and while the answer was no, seven judges dissented. One of them, Sandra Ikuta, accused Wardlaw of making it "exceptionally difficult for public employers to go about the business of running government offices." She pointed out that in one month, only 57 of more than 450 text messages that Quon sent were work-related. (The police chief was apparently right to wonder about him.) Ikuta also said that Quon could have made sure the city wouldn't search his texts by using his own phone or pager to send them. That still has to be the safest route—use your own phone or e-mail account for anything you don't want your employer to see.
The fight on the bench worked what Orin Kerr on Volokh's Conspiracy calls "that old Ninth Circuit magic." A conservative judge (Ikuta) protested a management headache caused by a liberal judge (Wardlaw), and this week, the Supreme Court agreed to hear the case. Kerr says this is the first court of appeals ruling to address the question of whether text messages have Fourth Amendment protection. So the justices won't have much to look to from the lower courts as they try to figure this one out.
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