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June 22, 2010

Expectations of Privacy, Revisited

In City of Ontario v. Quon, the U.S. Supreme Court concluded that, in the particular circumstances of the case, a government employer had a right “to read text messages sent and received on a pager the employer owned and issued to an employee.” Deciding the case in carefully narrow fashion, Justice Anthony Kennedy’s opinion for the Court assumed that the police officer, Jeff Quon, had a reasonable expectation of privacy in his text messages and concluded that the search of those messages was reasonable, because it was conducted for a legitimate, work-related purpose.

Before reaching this conclusion, Kennedy spends some time toying with the question whether Quon had a reasonable expectation of privacy sufficient to trigger Fourth Amendment protections. The Court assumes, for the purposes of this case, that he did, rather than resolving the issue because, as Kennedy puts it, “[t]he Court must proceed with care when considering the whole concept of privacy expectations in communications owned by a government employer. The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.”

When it decided Katz v. United States in 1967, the Court had no such reluctance. In that case, the Court determined that individuals have a reasonable expectation of privacy in a telephone booth. Kennedy suggests that “[i]t is not so clear that courts at present are on so sure a ground,” thus suggesting that, unlike text messaging, the technological issues in Katz could be viewed as within the realm of judicial competence to evaluate. Kennedy goes on to observe that what society regards as private is changing, and that “employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated.”

The problem here is that technology has obscured the central issue regarding the privacy the framers designed the Fourth Amendment to protect. One does not have to have an engineering degree to see why Katz had a reasonable expectation of privacy in a phone booth: because the whole point of entering a phone booth and shutting the door was to create a private space in which to have a conversation. Whether Katz’s side of that conversation was actually private was essentially irrelevant; obviously, someone could have read his lips through the glass or perhaps been standing close enough to hear his part of the conversation. Those possibilities did not matter because the conception of reasonable privacy embraced in Katz was normative—the Court assumed some retreat from the world should be sanctioned, even if it could not be perfected; otherwise, we could reach a point at which technology makes nearly every expectation of privacy unreasonable.

For its part, the Quon Court is suggesting that privacy should be judged by such measures as societal standards and employer guidelines. This means that, even if no one save Quon and the person with whom he was texting could see the content of their communications, still there might be no privacy if an employer declared that employees, on employer-owned equipment, had no expectation of privacy. This understanding of privacy, unlike that adopted in Katz, is descriptive: it is defined by what content a person can actually keep from prying eyes, rather than by what a court should regard as necessarily private. Consider that, as in the cases involving information revealed to a bank or a doctor, a court could conclude that, simply because the provider of the text messaging service has access to the content of the user’s texts, there can be no reasonable expectation of privacy.

Because perfect privacy is not possible, this kind of thinking will ultimately forestall arguments about expectations of privacy in respect to new modes of communication. So let’s read Quon in a more positive light. Perhaps the Court’s fussing about the various possibilities for a reasonable expectation of privacy in text messaging and like communications services signals that arguments for the normative conception of privacy articulated in Katz will have some weight in litigation about the privacy of communicative modes that would not exist without third-party intermediaries.

Lawrence Friedman

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