Quon v Arch Wireless- Search and Seizure Issues- Post 1

Quon v Arch Wireless, et al. – Part I- Search and Seizure Issues

Quon may herald the dawn of new privacy protections. Probably NOT, though. Given the current makeup of the court, I just can’t see it happening.

Let’s start off with the facts of the case so that we’re all on the same page and then I’ll go into my reasoning (for you folks who either already know the facts or don’t care, I’ll give my reasoning in a nutshell—the Supremes aren’t going to find a reasonable expectation of privacy exists in public records).

Quon was a sergeant in the Ontario, California police department. He was issued a text-pager in 2002. At the time, there was a department policy that expressly governed Internet, email and computer use. The policy was not modified to embrace the text-pagers. The policy stated that employees have no expectation of privacy in their Internet, email or computer use.

There are two major cases from the Quon litigation. One is the 9th Circuit case from 2008 and the other is from 2009. The 2008 case is the meat and potatoes- that’s where the 4th Amendment issues are decided. The 2009 case mostly airs some of the Justices’ laundry with biting majority and dissenting opinions concerning the more esoteric Stored Communications Act issue.

The 2008 majority found and the 2009 majority upheld the informal policy announced and enforced by Quon’s supervisor applied to the pager and text messages. The informal policy emanated from the supervisor’s statement (which was disputed) that as long as personnel did not exceed a 25,000 monthly character limit, that no one would read the messages. (Many message services online limit single messages to 150-200 characters. At the average of 200 characters per message, the 25,000 character limit translates to about 125 messages a month, or about 4 or 5 messages a week.) If a user exceeded the character limit, he or she would be required to pay for the overage. Quon went over the character limit several times. The supervisor at one point determined that he did not want to be a ‘bill collector’ and the chief directed that he conduct an audit of the highest users’ messages. The purpose of the inquiry was to determine whether the messages were business or personal in nature, as the department would increase the character limit if they were requiring officers to pay for business related communications.

The supervisor requested and received copies of the text messages from Arch Wireless, the text-pager communications provider. From reading the messages, the supervisor recognized that many of them were sexually explicit and initiated an internal investigation to determine whether department employees were spending work time on personal matters. Many of Quon’s messages were to and from one of the department dispatchers, Quon’s wife and another sergeant at the police department. The department employees were not disciplined as a result of the text message audit.
Quon, his wife, the dispatcher and the other sergeant filed suit against Arch Wireless, the supervisor, chief and the city of Ontario, California for violating the Stored Communications Act within the Electronic Communications Privacy Act, 18 USC 2701-2711, 18 USC 1983 and violation of the plaintiffs’ 4th Amendment rights against unreasonable searches and seizures. There were a number of motions for summary judgment, an appeal and a denied motion for rehearing en banc. (This is just a gloss over of the procedural history, which is rich. See the case for more information.)

There are two big issues going on in the Quon case. Much has been made about the privacy issues, and they are significant. There is an ECPA issue that is critically important as well. The following sections will address the privacy issue and I'll address the ECPA/SCA issues in Post 2.

Search and Seizure

We all know the routine- the Constitution protects people not things (Katz v U.S., 389 U.S. 353 (1967)). In order for property to be protected by the Fourth Amendment (and the Fourteenth), the owner must possess a reasonable expectation of privacy in it and the expectation of privacy must be one that society is willing to recognize and protect.

My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person has exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as “reasonable.” Thus a man’s home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the “plain view” of outsiders are not “protected” because no intention to keep them to himself has been exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable.

Katz, 389 at 361 (Harlan, J. Concurring).

In Quon, the 9th Circuit incorrectly held that Quon possesses a reasonable expectation of privacy in the pager messages and that the expectation is one that we should recognize. That’s the principle flaw in the opinion. Quon may have asserted an expectation of privacy in the messages. He may have actually possessed a deluded belief that the messages were “private,” but his expectation of privacy is unreasonable and not one that we should recognize. The reasons I believe the expectation of privacy was unreasonable are that first, the pager messages were public records, and second, the department’s Internet use and email policy applied to the messages.

California Public Records Act

California has a freedom of information act that makes most government communications public records. (See Cal. Gov’t Code § 6253(a).) The majority held that “[t]he existence of the CPRA as a consider¬ation is offset by the existence of the informal but express policy and practices governing the use of the pagers by the OPD officers. Moreover, as our panel (and the district court) note, there was “no evidence before the [c]ourt suggesting that CPRA requests to the department are so widespread or frequent as to constitute an open atmosphere so open to fellow employees or the public that no expectation of privacy is reasonable.” Quon, 529 F.3d at 907 (alteration in original) (internal quotation marks omitted); see Zaffuto v. City of Hammond, 308 F.3d 485, 489 (5th Cir. 2002) (holding that, notwithstanding the existence of the public records law, “[a] reasonable juror could conclude . . . that [the plaintiff] expected that his call to his wife would be private, and that that expectation was objectively reasonable”); see also Yin v. State of Cal., 95 F.3d 864, 871 (9th Cir. 1996) (“Although there is little direct case law on point, obviously there are lim¬itations on the state’s ability to erode reasonable expectations of privacy by statutory enactments.”).”

Is California another PLANET? Seriously, a statute is offset by an informal policy made up by a supervisor? Here, the court is stepping way over the line. The officers know that what they write and communicate is a public record. No one who works for a police department, having worked for a police department for more than eighteen years myself, seriously expects privacy in their communications.

The court is wrong in holding that although the CPRA may apply, the number of requests for the information are so infrequent as to allow for a reasonable expectation of privacy in the messages on the part of the pager users. I may be wrong, and often am. However, the line established by the court seems preposterous. In essence, the court is saying that the messages are private for some purposes, but for other purposes they aren’t. As a citizen, I could request the messages and be entitled to receive them, put them on my website, include them in a news article. But, if nobody requested the messages, the person who sent or received them could retain a privacy interest sufficient to sustain a lawsuit against the government if the government violated the privacy expectation. It just doesn’t sit right. It sounds too much like having one’s cake and eating it, too.

I think the dissent in Quon gets it more right than the majority does. “Government employees in California are well aware that every government record is potentially discoverable at the mere request of a member of the public, and their reasonable expectation of pri¬vacy in such public records is accordingly reduced. As noted in O’Connor, where the public has access to a government workplace, it may be that “no expectation of privacy is rea¬sonable.” 480 U.S. at 717-18.” At 19. The argument is compelling. The text messages were public records, so, while there might be some unrealistic, yet extant, subjective expectation of privacy, it was neither reasonable nor was it an expectation of privacy that we should protect.

Besides the statutory issue, it’s simply not reasonable for a police officer to think that a first line supervisor can countermand state statute with a verbal statement of informal policy. Just because a supervisor says he isn’t going to enforce a policy, or will relax a policy in a given instance, that cannot create an expectation of privacy in a public record. If a higher level supervisor orders enforcement of the policy, the informal policy is unenforceable because the supervisor had no authority to create it in the first place.

To reiterate, 1) any citizen could request the text messages, and under the California statute, the police department would be obliged to turn them over (notwithstanding the Stored Communication Act issue, which I will address shortly); 2) the informal policy was not valid because the supervisor did not have the authority to void a state statute; 3) because Internet communications and email were not subject to an expectation of privacy under the department policy, it would be unreasonable to expect that the text messages would be.

Not a Privacy Interest We Want to Recognize

Even if the Supreme Court holds that Quon had a reasonable expectation of privacy in the pager messages, they should find that such an expectation of privacy is not one that we, as a people, want to protect. Sure, we want people to exercise their First Amendment right to free speech. Most of us agree that the right to free speech is central to the success of our political system and a key ingredient of our freedom. However, this isn’t a First Amendment case. This is a Fourth Amendment case. We’re talking about the employer having a right to access speech held in storage on government owned equipment. Although the speech may be personal in nature, it is otherwise not allowed by policy in other electronic forms, and is comingled with official speech.

The comingling issue is important because personal and work-related pager messages are stored together. Certainly there probably was some way to separate the wheat from the chaff. However, if there was a request for information by the public or in response to litigation, all the messages would have been culled through and the personal messages read, notwithstanding any expectation of privacy Quon may have held. Consider a situation in which a citizen requests all text pager messages sent or received during the period just prior to and just after a car accident. State of New Mexico v Marty Ortiz (2009-NMCA-092, 8/13/09). In Ortiz, the material sought was personal cell phone records of the police officer. The court ordered production of the cell phone records, unquestioningly more private than messages most likely covered by a statute that declares them to be public records.

More on Quon will come in a second part to this post. . . stay tuned. It's edge-of-your-seat stuff. . . Part 2 will address the ECPA/SCA issue. . .

Fogged Blog

Sorry for not posting more regularly. I was posting to the wrong blog! So, I'm going to post some that I posted to the 'fog' and hope you'll bear with me.

Great Gadget- Livescribe Pen

Hooray for a gadget that not only works, but it is an answer to many prayers. The Livescribe is a smart-pen. It records audio while you take notes. The only drawback is that you have to use proprietary paper from the manufacturer. However, that’s the only drawback I’ve seen so far.

It took about 45 minutes to set the pen up and start to really feel comfortable with it and its features. The time spent getting acquainted with the pen was well worth the investment. It’s a dynamo that I has become my favorite gizmo. I sat through a hearing and recorded testimony while taking notes the first time I used it. When I was driving home, I listed to the testimony again. When I wrote up my report, I touched the pen to the section of my notes where I thought someone said something important and zoom! The pen replayed the audio from that point.

The audio is easy to speed up, slow down, and find. The volume of the recording is excellent. I was sitting about 10 feet away from the person speaking and the pen picked up the audio perfectly. I didn’t miss a word, even mumbled.

But audio isn’t the only excellent feature the pen has to offer. Because you take notes on the proprietary paper, you download your notes when you download your audio to your laptop or desktop. With your notes on your pc, there’s no limit to what you can do with them now.

I love the Livescribe. It would have been the perfect helper in law school. Off the top of my head, I can think of about a million ways it could have made my life easier in school. For a lawyer, the pen can be invaluable- for meetings, depositions, hearings. Imagine- no waiting for a transcript and being able to find the information you want easily and download it to your computer along with your notes! It’s a dream come true that’s as easy to use as it is handy.