Supreme Court Threads The Needle On 4th Amendment For Stored Communication

from the privacy-please dept

Thu, Jun 17th 2010 5:07pm — Mike Masnick

The Supreme Court today ruled in the Quon case, on the question of whether or not it was legal for a police department to look at the text messages sent by an officer (using a department issued device) as a part of an audit. The big question was whether or not communications that are stored elsewhere are subject to 4th amendment protection. This is a tricky question, and it looks like the Supreme Court effectively decided to punt on it by purposely avoiding the 4th Amendment issue, and ruled on a separate issue (saying that it was legal for an employer to look at an employee's messages). But on the specific 4th Amendment issue, the court was clear that it was better to look at the specifics of each situation, rather than creating a hard and fast rule:

The Court must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer. The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear. See, e.g., Olmstead v. United States, 277 U. S. 438 (1928), overruled by Katz v. United States, 389 U. S. 347, 353 (1967). In Katz, the Court relied on its own knowledge and experience to conclude that there is a reasonable expectation of privacy in a telephone booth. See id., at 360-361 (Harlan, J., concurring). It is not so clear that courts at present are on so sure a ground. Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices.

However, the court did hint, that, despite the claims of some lawyers, 4th Amendment privacy rights can and should be extended to cover communications stored via third parties, since it would seem that there is a reasonable expectation of privacy.

Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self identification. That might strengthen the case for an expectation of privacy.

That said, it also argues the other side would be that since those devices are so cheap, anyone who wants to do personal things can just use their own, rather than use an employer's device. But, either way, for now the Supreme Court has officially punted on the 4th Amendment question.

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Filed Under: 4th amendment, privacy, quon, stored communications

15 Comments

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Anonymous Coward, 17 Jun 2010 @ 5:32pm

it isnt really a punt, as much as saying that the issue is still a little nebulous and that a ruling at this point may be a little quick in what is an emerging field. i suspect they will have to tackle the issue at some later date with a case that is more specifically on point. this one was only in passing.
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V, 17 Jun 2010 @ 5:33pm

That is why all my communications are encrypted.

PGP, TOR, GNUNet, I'm not counting on them to do the right thing.

And those sites that don't allow me to access them via encrypted channels are no good to me.
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Anonymous Coward, 17 Jun 2010 @ 5:45pm

"The Supreme Court today ruled in the Quon case, on the question of whether or not it was legal for a police department to look at the text messages sent by an officer (using a department issued device) as a part of an audit.
...
the court was clear that it was better to look at the specifics of each situation, rather than creating a hard and fast rule: "

So is that a definite maybe?
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Joseph Durnal, 17 Jun 2010 @ 5:52pm

I didn't see this as a 4th amendment issue
Once your electronic communications are stored on a system that you don't control, there is no 4th amendment protection, just as if you were to keep a box of something in your employer's office, or in the car you lend to your buddy, you've given up your right to keep the box of something private.

I make a living dealing with e-mail systems and instant messaging systems, and that occasionally includes retrieving messages for various reasons, from internal corporate investigations, to police matters, to congressional subpoenas. These days, it isn't just e-mail, it is voice mail, instant messages, texts, etc. If you think things like texts aren't getting archived by your company's blackberry server, think again!
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Anonymous Coward, 17 Jun 2010 @ 5:55pm

More like if the employer owns the device they have a right to look at what you are doing with it and so you have no privacy. If you want privacy, use your own device.

Akin to fornicating in the break room and expecting privacy from your employer then suing when they find you.
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sinrt, 17 Jun 2010 @ 9:21pm

Isn't this the case where the officer paid his supervisor to use his pager/cellphone specifically for personal use and only after accepting money did the higher ups change their mind?
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Anonymous Coward, 17 Jun 2010 @ 9:27pm

Re: I didn't see this as a 4th amendment issue
A phone booth is a third party owned device and still privacy applies, the phones relays(computers) are all third party and privacy applies.

There is no fourth amendment now but there should have been all along.
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Joseph Durnal, 18 Jun 2010 @ 6:28am

Re: Re: I didn't see this as a 4th amendment issue
A phone booth doesn't store anything.
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Anonymous Coward, 18 Jun 2010 @ 7:16am

This is why agencies need a strong and effective acceptable use policy. if he signed an AUP where he acknowledged he had no expectation of privacy the whole issue would be moot.
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Anonymous Coward, 18 Jun 2010 @ 8:13am

easy fix, Don't use employee provided equipment for private conversation.

DUH!
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MD (profile), 18 Jun 2010 @ 8:20am

Re: Re: Re: I didn't see this as a 4th amendment issue
@Anonymous Coward
Correct me if I'm wrong, but the issue in Katz had nothing to do with the actual method of communication. The police used a listening device on the EXTERIOR of the booth to listen in on his conversation while he was placing an illegal bet. The SC ruled that the phone booth was a private place since he had shut the door prior to making the phone call and the use of the device breached his privacy.

@Joseph Durnal
I feel this IS a 4th Amendment issue given the state of technology and society's expectations.

The way the logic of previous rulings has been thus far is that any communications that are stored somewhere by a 3rd party are no longer private. Also, communications aren't private in the sense that your ISP/phone provider/etc need to forward the data to billing in order to process the bills. Again, a 3rd party.

The way we txt/email/chat these days, everything pretty much goes through a 3rd party. In this case, given the logic the court has used thus far, its not unreasonable to draw the conclusion that any data sent via a company owned device is accessible to the company as well. Thus, there is no "reasonable expectation of privacy."

I'm not suggesting this is right or wrong. Technology is leaps and bounds ahead of law and lawmakers. Perhaps in this day and age, the way communications are handled, SOME 3rd parties should be within the protective bubble of "reasonable expectation of privacy." Society EXPECTS that the raunchy txts/emails sent to significant others are "private" or we probably wouldn't be sentat all.

Essentially, the slow pace that the law is taking to catch up with the day-to-day technology we use is eroding our rights.
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MD (profile), 18 Jun 2010 @ 8:22am

Re:
What happened was that he went over his limit and his usage had to be looked into in order to determine "why." As a result they found his explicit personal communications and said it was a no-no.
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Joseph Durnal, 18 Jun 2010 @ 11:39am

Re: Re: Re: Re: I didn't see this as a 4th amendment issue
I do advise customers to have a good electronic communications policy in place, with words like "all electronic communications" and "including e-mail, instant messages, text messages, and voice mail". Telephone conversations are more tricky. Of course these days, that is often in the form of VOIP, which makes it easy to monitor and record with simple software, but the laws on this are a lot more complected.

A legislative customer of mine had an interesting scenario (not sure if it is still like this) but each legislator had to have their own e-mail server in their own office, as did each committee. They collectively felt that that was the only way to protect it from search and seizure from the executive branch. I think that they have a good understanding of the law :)
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Overtkill (profile), 18 Jun 2010 @ 3:18pm

Re: I didn't see this as a 4th amendment issue
I concur. People need to realize that everything they due involving any digital communications device, be it a computer, cell phone, etc. should expect that their communications are logged to some degree.

When the issue comes up over using Corporate or Department equipment for private use, their expectations for privacy do not exist. As an Admin, one of my tasks is parsing firewall logs to check for everything from the employee who spends all day on the internet surfing, to those who feel its okay to view pron (not misspelled) or download illegal software on company time, with company bandwidth, and company devices. Be it Blackberry, Instant messengers, or pretty much EVERYTHING. Its all logged. Even attempts by these people to circumvent the logs by trying to encrypt from within the network, to an external proxy (VPN, or other).

Any admin worth his salt will easily find problem people. Most of us pray that when we hit the logs, we find nothing and everyone has a good day. I know I do. Though I have had to be the unfortunate source of bad news that led to many firings, and had to provide the evidence as well. You see the side of people that they wouldn't show to anyone. It sucks to see it, and it takes the right kind of person (admin) to be discretionary or secretive about the habits of others. A sense of honor I guess, in that 99% of what an admin knows will never be spoken.

I'm rambling. I wanted others to know the thought process that many admins (myself, many others) have when we do these tasks. :)
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Overtkill (profile), 18 Jun 2010 @ 3:24pm

Re: Re: Re: Re: Re: I didn't see this as a 4th amendment issue
AS I stated in another reply, any admin worth his salt would take care of this as part of a new hire, or new user account shows on on his or her network.

You are absolutely correct!

On the executive branch theory, all the FBI needs is a search warrant, we all know, for them, those are relatively easy to get if they have a good enough reason. Though senators, representatives, etc, to have a bit more protection from such a thing than the rest of us "little" people. (Sorry, couldn't resist...)
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