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U.S. Supreme Court Considers Privacy Interest in Electronic Messages

On Monday, April 19, 2010, the U.S. Supreme Court heard argument in a case that involves public employee privacy interests in electronic messages delivered to pagers. The City of Ontario had audited text messages sent to pagers issued to its police officers to determine if the pagers were being misused for personal purposes. The Ninth Circuit ruled that the City had violated the officers right of privacy. The Supreme Court granted certiorari to consider these questions:

1. Whether a SWAT team member has a reasonable expectation of privacy in text messages transmitted on his SWAT pager, where the police department has an official no-privacy policy but a non-policymaking lieutenant announced an informal policy of allowing some personal use of the pagers.

2. Whether the Ninth Circuit contravened this Court’s Fourth Amendment precedents and created a circuit conflict by analyzing whether the police department could have used “less intrusive methods” of reviewing text messages transmitted by a SWAT team member on his SWAT pager.

3. Whether individuals who send text messages to a SWAT team member’s SWAT pager have a reasonable expectation that their messages will be free from review by the recipient’s government employer.

The transcript of the oral argument is available here. The Court should hand down its decision by the end of June.

A report about the Ninth Circuit’s decision appeared in an earlier post on this blog.

City of Ontario v. Quon, Dkt. No. 08-1332.

UPDATE: The Supreme Court eventually ruled that there was no Fourth Amendment violation because the search of the text messages was motivated by legitimate work-related purpose, and was not excessive in scope. City of Ontario v. Quon, No. 08-1332 (Jun. 17, 2010).