Quon Roundup on Employee Computer Privacy

Lots of discussion about the Quon case focused on the lack of technology expertise by the Justices on the Supreme Court. Actually, most people labeled them as Luddites. DC Dicta even claims that Chief Justice Roberts writes his opinions in long hand with pen and paper.

This issue that I am hoping to see addressed is how a stated policy on the use of a company’s hardware and network can be enforced in light of an employee’s expectations of privacy.

I doubt that issue will be addressed directly. The Quon case involves a government employee so the discussion of the issue will likely focus on the Fourth Amendment protection. These protections are largely irrelevant for private employees.

Even if the Justices avoid the Fourth Amendment issues, they may decide the case under the Stored Communications Act. That’s a rather boring and technical law. It’s also largely irrelevant to the use of a company’s hardware and network. Although it may provide some insight for the use of cloud computing and web 2.0 site.

The United States Government, through the arguments of Neal K. Katyal, Deputy Solicitor General, seemed to ask the Court to adopt a bright-line rule that a company can trump the reasonableness of any employee’s expectation of privacy by issuing a policy that employees have no privacy in communications when using the company-provided hardware or network.

The Justices seemed fairly skeptical of that kind of bright-line rule in their questions of Mr. Katyal.

The problem is that tightly crafting laws to specifically address the use of particular communication technologies will fail. In the current environment, the technological advances in communications is moving much faster than the cogs of  bureaucracy in crafting regulations. The Supreme Court (well, at least Justice Alito) recognized that the expectations of privacy with new communication are in flux.

“There isn’t a well-established understanding about what is private and what isn’t private. It’s a little different from putting garbage out in front of your house, which has happened for a long time.”

The ruling in the case is expected sometime June at the end of the Supreme Court’s term. It’s certainly something for compliance professionals to keep an eye on.

Sources:

• Transcript of Oral Arguments City of Ontario v. Quon (08-1332)
• Briefs, opinions and other primary source material for City of Ontario v. Quon in SCOTUSwiki
• Tech Neutralilty Meets The Supremes by Scott Greenfield in Simple Justice
• Oral Argument in the Quon Text Messaging Case Suggests the U.S. Supreme Court Will Avoid a Broad Pronouncement Concerning Employee Privacy Rights in Workplace Privacy Counsel
• The Fourth Amendment, New Technologies, and the Case for Caution by Orin Kerr in The Volokh Conspiracy
• High Court Justices Consider Privacy Issues in Text Messaging Case by Marcia Coyle in The National Law Journal
• Thoughts on the Oral Argument in City of Ontario v. Quon by Orin Kerr in The Volokh Conspiracy
• A Plea for a Tech-Savvy Justice by Arthur Bright in Citizen Media Law Project
• Court takes up public employees’ privacy case By Mark Sherman AP
• Justices hear case of Ontario police officer who sent risque messages By David G. Savage in the Los Angeles Times
• SCOTUS Dips into Technology with Quon by Virginia Henschel in LexisNexis Applied Discovery
• Technical difficulties at the Supreme Court in DC Dicta
• Applying the Fourth Amendment to the Internet: A General Approach by Orin S. Kerr in the Stanford Law Review (62 Stan. L. Rev. 1005, April 2010)
• Supreme Court to Hear Case on Employer Access to Worker Messages – prior post

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