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Supreme Court will review some issues in Quon Case, denied review to other issues

Some additional information on yesterday's post regarding the Supreme Court's decision to hear the Quon case. The high Court agreed to hear some, but not all of the issues presented by the Ninth Circuit decision in the case.

The Court will consider whether a police sergeant assigned to a SWAT team had a reasonable expectation of privacy under the Fourth Amendment in text messages transmitted on a department-issued pager and stored by an outside service provider even in the face of the City of Ontario's "general practice" of non-monitoring of such communications. The Court denied review (known as "certiorari") to questions of whether the surrender to the city in the first instance by Arch Wireless (the service provider) of those messages violated the Stored Communications Act.

The questions for review are limited, then, to three:• Does a SWAT team member have a reasonable expectation of privacy in text
messages transmitted on his SWAT pager, when the police department has an
official no-privacy policy but a non-policymaking lieutenant announced an
informal policy of allowing some personal use of pagers?

 

• Did the Ninth Circuit contravene Fourth Amendment precedents and create
circuit conflict by analyzing whether the police department could have used
'less intrusive methods' of reviewing text messages transmitted by the SWAT
team member on his SWAT pager?

• Do 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?

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Author

Cynthia J. Larose

Member / Chair, Privacy & Cybersecurity Practice

Cynthia J. Larose is Chair of the firm's Privacy & Cybersecurity Practice, a Certified Information Privacy Professional-US (CIPP-US), and a Certified Information Privacy Professional-Europe (CIPP-E). She works with clients in various industries to develop comprehensive information security programs on the front end, and provides timely counsel when it becomes necessary to respond to a data breach.