e-Discovery Team

The U.S. Supreme Court has agreed to hear an appeal concerning privacy rights to electronic communications. The case comes out of the  Ninth Circuit: Quon v. Arch Wireless, 529 F.3d 892 (9th Cir. 2008). The Supreme Court could use this appeal as an opportunity to write an opinion that not only broadly impacts privacy rights of all U.S. citizens, but also impacts employee rights, public record disclosure duties, and the scope of electronic discovery. I have written about the Ninth Circuit’s opinion in Quon v. Arch Wireless before in my last book, Introduction to e-Discovery (ABA 2009) (pg. 481), and also about the larger privacy issues that this case raises in the Chapter entitled Are We the Barbarians at the Gate? (pages 364-283 and also on this blog).   Quon could, if the Supreme Court wishes, address the growing lack of personal privacy in the Technology Age.  As the Ninth Circuit put it in their opinion under review:

The extent to which the Fourth Amendment provides protection for the contents of electronic communications in the Internet age is an open question. The recently minted standard of electronic communication via e-mails, text messages, and other means opens a new frontier in Fourth Amendment jurisprudence that has been little explored.

In accepting certiorari the Supreme Court appears ready to venture into these uncharted electronic waters and provide guidance needed by our courts. In my view these issues are critical, and are growing in importance, because of two converging trends:  1) the explosion of new technologies and  information; and, 2) the  erosion of the distinction between personal and work life, home and office. Many people use their work email all of the time, not just at work, and for everything, not just business. It would not surprise me if the Supreme Court judges do too.

Is Privacy Still Possible in Today’s World?

Technology has unquestionably already led to a significant deterioration of privacy rights. Things have reached the point that many think it is futile to try to maintain privacy in the Internet age. For instance,  Scott McNealy, CEO of Sun Microsystems, once famously said, “You have zero privacy anyway. Get over it.” But many privacy advocates disagree, and so too do the legal systems in most countries of the world. Compared to the legal systems in Europe and other countries, the United States provides only minimal privacy protections to its citizens. See the mentioned  Are We the Barbarians at the Gate? article.

American’s already weak electronic privacy rights are usually lost entirely in an employment context. See my article on these employment privacy related issues in IT Workers Read Your Personal Email and U.S. Law is Generally OK with That. As one commentator I know well recently put it:

Generally, American courts have held that employers are free to monitor employee computer use, and even government employers and supervisors can monitor employee computer usage without probable cause. Accordingly, employees who e-mail an attorney from the workplace, or from a workplace e-mail account, often lose the evidentiary protections of attorney-client privilege. … This disclosure is particularly devastating to the employee, as these types of e-mails are often damning. (citations omitted)

Losey, Adam; Clicking Away Confidentiality: Workplace Waiver of Attorney-Client Privilege, 20 Fla. L. Rev. 5 (Dec. 2008). The combination of old paradigm laws, the ones arising out of  management versus labor world views, plus the rapid advances in technology, are wrecking havoc on the right on the right of American’s to be left in peace.

Facts of Quan v. Arch Wireless

Here are some of the key facts of this lawsuit. The lead plaintiff, Jeff Quon, sued his employer, the City of Ontario, for violation of  a right to privacy he claimed to have to text messages he sent to his wife, Jerilyn Quon. The City admitted that it obtained the text messages from the wireless provider, Arch Wireless, who kept copies of all of them (much to Quon’s surprise). They obtained the text messages and read them without Quon’s permission.

The city took the position that its employee, Jeff Quon, a swat team police officer, had no privacy rights because the employer owned the pager that sent the text messages and paid for part of the service (Quon paid for overages) and because of the city’s computer use policies. The city also argued that the people texting their employee had no rights to privacy of these messages either.

The city made these claims of no reasonable expectation of privacy primarily because it had adopted a computer use policy that told all employees they had no right to privacy when using city-owned computer devices. The trial court, and the Ninth Circuit, both agreed that this use policy alone would have defeated the employee’s right to privacy. But they also found that this written policy had been abrogated by the conduct and oral comments of Quon’s supervisor in charge of text messaging.

This kind of decision is not too uncommon in the law and has led most experts to counsel employers to actually follow a written rule, and act in accordance with it, if they ever want to be able to enforce it in court. Many employers have draconian policies on computer use that no one ever follows, including especially management, and they are hard put to later enforce it in a selective manner.

The Quon case arises out of an employment context. For this reason, the Supreme Court’s ultimate opinion here could, depending on what approach they take, be limited to employment related issues and not address general electronic privacy rights. If that happens, I doubt that the Court will take any major steps to grant new privacy rights to employees. They may well affirm a privacy right for employees where, as in this case, there is a no-privacy policy, but it is not consistently enforced and has been verbally modified. But I doubt they would do more on that front.

Still, the Supreme Court could also hold that third parties, such as the employee’s wife and others who sent messages to Quon, did not lose their privacy rights, even if the employee did. After all, they own their own equipment and they are not subject to the usage requirements. They have no contract with the recipient’s employer. They might not know anything at all about the recipient’s employment or their employer’s policies, which is what Jerilyn Quon here claimed when she joined her husband in this law suit.

Quon’s wife was not an employee of the city (although she apparently once was). She joined with Quon to sue both the city and Arch Wireless for the unlawful invasion of their privacy rights. So too did a few others who had sent text messages to Jeff Quon, including, according to the employer, Quon’s mistress! Apparently many of Quon’s texts were quite sexy, graphic, and no doubt you will be able to read them soon on a tabloid (but not here). The suit of the wife and friends of Quon against the city turned on the same issue as Jeff Quon of whether they had a reasonable expectation to privacy to the text messages they prepared and sent to Quon.

The Court could, if it wished, consider the rights of the non-employees separately and thus enlarge the importance of its opinion here well beyond the employment sphere. Certainly their rights are different, as they did not sign anything agreeing to be bound by the city’s computer use policy. They never signed or did anything where they purported to relinquish all privacy rights to any communications they made, sexy or otherwise, that happened to be received by someone on a company owned device.

The Court Has Already Provided a Big Clue on How It Might Rule

You never know what this new Supreme Court might do. We do, however, have a clue from their rejection of the appeal by the co-defendant to the city in this case, Arch Wireless. The suit of all of the plaintiffs against Arch Wirless turned on entirely different legal grounds, namely an interpretation of the Stored Wire and Electronic Communications Act, 18 U.S.C. §§ 2701-2711 (1986). The Appeals Court held that a paging company was an “electronic communication service” governed by the act. Thus the company’s disclosure of the messages to the employer, who was the “subscriber” and not “an addressee or intended recipient of such communication,” violated the act. The Supreme Court refused to review this decision.

This rejection of the Arch Wireless’ appeal may be an indication of the Supreme Court’s inclination to expand electronic communications privacy rights to be a little bit closer to what is found in the rest of the world. Their refusal to hear their appeal, while at the same time accepting the appeal of the City of Ontario, means that the Ninth Circuit’s interpretation of the  Stored Wire and Electronic Communications Act stands as governing law, at least in the states, including California, within the jurisdiction of the Ninth Circuit. For implications of what this may mean to employers and others who read the email and text messages of others stored in the clouds, see the recent opinion by the Fourth Circuit Court of Appeals: Van Alstyne v. Electronic Scriptorium, _F.3d_, 2009 WL 692512 (4th Cir. March 18, 2009). Also see my article New 4th Circuit Ruling on Illegal e-Discovery Adds Teeth to Federal Anti-Hacker Email Privacy Law.

Conclusion

The acceptance of the Supreme Court of part of the appeal in Quon v. Arch Wireless is somewhat surprising. It suggests an inclination of the  Court to tackle some of the really tough issues of our day. They may end up punting and write a narrow technical decision, but then again, they may get a majority to agree on broad-based change.  With any luck we will receive much-needed guidance next year on what electronic information is confidential and should be protected, and what is subject to full and open discovery, both in and out of court.

The Supreme Court Justices are all scholars and knowledgeable not only of the laws of our country, but also, at least generally, of the laws of other countries in the world. The privacy laws prevalent in Europe are now far divergent from our own. Since we now live in one, very interconnected world, the strong differences in the law are counter-productive. It not only makes electronic discovery very difficult in cross-border situations, it hinders global cooperation on many other levels.

Civilization must progress together. We all need to evolve beyond the old paradigm of employer-employee, us-them mentality. This applies equally to management and unions, both of which may well disappear in the Goggle-like companies of the future. We need to adopt new, more progressive privacy and employment policies that reflect the 24/7 total connectivity of modern life. There is no reason for us to trade our individual rights and liberties for the latest technologies. We can and must have both.

This entry was posted on Tuesday, December 15th, 2009 at 5:36 pm and is filed under Evidence, Search, Technology. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.