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City of Ontario v Quon

I blogged about City of Ontario v. Quon a few days ago, and I want to raise another important issue in the case, one my colleague Orin Kerr has astutely pointed out.  The case is on appeal to the U.S. Supreme from the 9th Circuit: Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892 (9th Cir. 2008).  The case involves whether employees at a police department have a reasonable expectation of privacy in the contents of their text message communications made from pagers while on the job.  In my previous post, I addressed this issue, which involves how to interpret the city’s monitoring policy (it had a general written policy for computer use but a set of informal practices for texting that were different).

The issue Orin raises involves the Fourth Amendment rights of the people Quon was texting and who texted Quon.  Orin writes:

I now think that the really juicy questions in the case involve whether the access violated the rights of the individuals with whom those employees were texting (here, Jerilyn Quon, April Florio and Steve Trujillo). That is, the really key question isn’t whether the government access violated the rights of the government employee who had received notice; Rather, it was whether the government access violated the rights of the folks on the other end of the communications.

This is an interesting question.  Suppose the Supreme Court finds that Quon lacks a reasonable expectation of privacy in his text message communications.  What about the other people, including Quon’s wife, who had no idea whether the city was monitoring Quon’s communications or not?

1. Suppose Alice texts Bill, and the government intercepts their communication.  Neither Alice nor Bill consents to the interception.  This is a Fourth Amendment violation.  Both Alice’s and Bill’s Fourth Amendment rights are violated.

2. Suppose Alice texts Bill, and Bill allows the government to intercept the communications.  This isn’t a violation of Bill’s Fourth Amendment rights because Bill consented to having the government see his communications.  And it’s not a violation of Alice’s Fourth Amendment rights because Alice assumed the risk of being betrayed when communicating with another.

In United States v. White, 401 U.S. 745 (1971), the Supreme Court held that if a party to a communication consents to let the government eavesdrop, then there is no reasonable expectation of privacy.  The Court relied on cases such as Hoffa v. United States, 385 U.S. 293 (1966) and Lewis v. United States, 385 U.S. 206 (1966) which held that a person doesn’t have Fourth Amendment protection if their friends betray them or if they trust a government agent.   These cases are known as the “misplaced trust” doctrine.  White involved a government informant wearing a concealed transmitter who transmitted conversations with the defendant to government agents.  The Court held : “If the law gives no protection to the wrongdoer whose trusted accomplice is or becomes a police agent, neither should it protect him when that same agent has recorded or transmitted the conversations.”

3. Suppose Alice texts Bill, and Bill doesn’t consent to allowing the government to intercept the communications.  But the government does so anyway because Bill lacks a reasonable expectation of privacy.  Without a reasonable expectation of privacy, Bill doesn’t have Fourth Amendment protection.  What about Alice’s Fourth Amendment rights?  Are they extinguished because she happened to communicate with a person who didn’t have a reasonable expectation of privacy?

This hypo is the most analogous to what happened in Quon. The misplaced trust doctrine isn’t applicable here because it involves cases when the person one is communicating with voluntarily allows the government to listen in (or is a government agent).  In hypo #3 (and in Quon) Bill (or Quon) isn’t consenting.  He just lacks a reasonable expectation of privacy.

What if the Court were to expand the misplaced trust doctrine to encompass not only situations where any party to the communication consents but also to situations where any party to a communication lacks a reasonable expectation of privacy?  This would create a very broad and unprecedented hole in Fourth Amendment protection.

Imagine I’m talking on a conference call with 5 people, and 1 person is on a cell phone in the park.  Does that person have a reasonable expectation of privacy?   Probably not according to Supreme Court jurisprudence — one lacks a reasonable expectation of privacy when one can be seen or heard in public. This situation doesn’t come up since the Wiretap Act would govern and require a “super warrant,” something even more stringent than a Fourth Amendment warrant.  And the Wiretap Act doesn’t bother with the silliness of looking for reasonable expectations of privacy (I’m working on a paper arguing that the reasonable expectation of privacy test ought to be scuttled).

In a world without the Wiretap Act, with just Fourth Amendment protection, what would happen to the other 4 people on the conference call?  They’re not in a place where they can be overheard.  Can the government intercept the call because the 1 person lacks a reasonable expectation of privacy?  I think not.  Intercepting the call would capture not only what could be overheard (i.e. the one person’s communication) but also what was said by the others on the call.  This would be much more than what the one person exposed in public.

4. The issue gets even harder, demonstrating how impoverished existing Fourth Amendment concepts are.  Suppose I lost my iPhone.  A cop finds it and reads all my communications.  Is this just abandoned property, something the Court says I have no reasonable expectation of privacy in?  What about all the other people who have communicated with me?  The government can now read all their communications, including an email I received from Orin Kerr telling me (in total confidence) that he “completely agrees with me on everything and knows he has been wrong all these years but is too embarrassed to admit it.”  Does he lose his Fourth Amendment protection too?

Originally Posted at Concurring Opinions

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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.

Professor Solove is the organizer, along with Paul Schwartz, of the Privacy + Security Forum and International Privacy + Security Forum, annual events designed for seasoned professionals.

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