Communicating With Those Who Have No Privacy Rights: The Hard Question in City of Ontario v. Quon

On Monday, April 19, the Supreme Court will hear oral argument in this Term’s only significant Fourth Amendment case, City of Ontario v. Quon. Quon considers whether a city violated the Fourth Amendment by obtaining copies of stored text messages sent over a city-provided text pager used by a city employee. In an earlier post, I explained that the Petitioner’s merits brief made the stakes of Quon a lot lower than some had expected: The brief was drafted narrowly to avoid the question of whether the Fourth Amendment applies to text messages generally, and instead focuses specifically on how much notice is required for government employees to waive their rights.

I’ve now had a chance to look through the rest of the briefs in Quon, and I think the really interesting and important issue in the case is one that hasn’t received much attention before. While in the past I have focused on whether the government access violated the rights of the government employees who were assigned the pagers (here, Jeff Quon), 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. In this post, I want to explain why this is a tricky problem and what I think the Court should do with it.

I. The Problem

To understand the issue in Quon, you need to know a bit about how the Fourth Amendment applies to some earlier technologies. The Fourth Amendment ordinarily protects the contents of communications during transmission and delivery. The same rule applies to government postal mail, private delivery companies like UPS, and phone calls: As soon as the sender of the communication sends off the communication, both the sender and recipient enjoy Fourth Amendment protection in the contents of the mail during delivery. When the item reaches the recipient, the sender loses his Fourth Amendment protection: The Fourth Amendment rights are transferred solely to the recipient. In practice, this works pretty simply. A “sender” of a communication has rights until the communication is delivered, and a receiver has rights as soon as soon as the communication is sent. At least that’s what lower courts have long held.

This is an issue in Quon because Quon is a civil case brought by both the senders and the recipients of text messages over a city-issued pager. As I understand the facts, Quon is a city employee who was texting with three people — his wife Jerilyn; some other private party named Steve Trujillo; and city employee April Florio, with whom Quon was having an affair. All four are plaintiffs in the civil action. That means that the civil case has to address the claims of all four employees: Jeff Quon who was covered by the city policy, and then the others who were only communicating with Quon.

I suspect the Justices will think the rights of Jeff Quon are easily resolved. The parties agree that Quon’s rights are governed by O’Connor v. Ortega; O’Connor says that notice takes away the rights of government employees; and Quon had notice. So far, so good (and pretty easy). But what about the rights of the individuals who are not covered by the policy? Were their rights violated?

II. The Ninth Circuit’s Treatment of this Issue

This ends up being a really hard question because it’s incredibly important to privacy online and yet has hardly been addressed by any relevant authority. The Ninth Circuit’s treatment of this issue was pretty lousy, so it’s not only unhelpful on this point but actually rather misleading. Here’s what Judge Wardlaw said about it:

Absent an agreement to the contrary,Trujillo, Florio, and Jerilyn Quon had no reasonable expectation that Jeff Quon would maintain the private nature of their text messages, or vice versa. See United States v. Maxwell, 45 M.J. 406, 418 (C.A.A.F. 1996) (“[T]he maker of a telephone call has a reasonable expectation that police officials will not intercept and listen to the conversation; however, the conversation itself is held with the risk that one of the participants may reveal what is said to others.” (citing Hoffa v. United States, 385 U.S. 293, 302 (1966))). Had Jeff Quon voluntarily permitted the Department to review his text messages, the remaining Appellants would have no claims. Nevertheless, the OPD surreptitiously reviewed messages that all parties reasonably believed were free from third-party review. As a matter of law, Trujillo, Florio, and Jerilyn Quon had a reasonable expectation that the Department would not review their messages absent consent from either a sender or
recipient of the text messages.

This is a terribly confusing (and confused) paragraph. The first problem is that a reasonable expectation of privacy is not a likelihood that facts won’t come to the attention of the police, as I have explained in detail here and covered here at the blog. Indeed, the Supreme Court has made clear that contractual agreements to maintain privacy are irrelevant: A contrary rule would allow co-conspirators to circumvent the third-party doctrine by just making their co-conspirators promise not to disclose their secrets. More broadly, Judge Wardlaw is confusing the absence of a reasonable expectation of privacy with the distinct doctrine of third-party consent. If two people are sharing a space and both have privacy rights there, one person can consent to a search of the shared space over the rights of the other because he has “common authority” to consent, see United States v. Matlock (1974), not because a person lacks a reasonable expectation of privacy in the shared space. So unfortunately, that passage from Wardlaw’s opinion doesn’t seem very helpful.

III. Why This Issue Comes Up Only Rarely

What makes this issue extra hard is that it has rarely come up with earlier technologies involving the telephone or postal mail. In 99% of past cases, when someone communicates with an individual who lacks a reasonable expectation of privacy, the monitoring occurs either at the end point of the communication, when the other side clearly doesn’t have Fourth Amendment rights, or else when there is a real-time communication over which one party can provide third-party consent. For example, if A sends mail to Prisoner B, the mail is searched when it arrives at the prison: The mail has been ‘received,’ the sender’s rights are extinguished, and opening the mail doesn’t violate anyone’s rights. Alternatively, if C is an undercover informant and agrees to speak on the phone to D and have the call taped by the government, D has consented under a third-party consent theory. Either way, the consent of one party to the communication suffices.

Text messages are different, though. As I understand the technology here, individuals were sending texts to Quon through the Arch Wireless service that stored copies of the texts in the course of delivery. But it seems pretty clear that Arch Wireless was not the recipient of the communications: Arch Wireless was making copies in the middle of transmission on their way to and from the plaintiffs, but they weren’t actually the origin or destination point. So that seems to raise quite a different issue: If you’re communicating with someone who has no privacy rights, do you have Fourth Amendment rights in the stored copies of your communications generated in the course of delivery?

This issue has come up only sparingly in the past. The only case that comes to mind is a Fourth Circuit case on phone calls with those using cordless phones. After holding that government monitoring of a cordless phone call doesn’t violate the Fourth Amendment rights of the cordless phone caller, the court then concluded that it doesn’t violate the rights of the person communicating with the the cordless phone caller. See United States v. McNulty, 47 F.3d 100, 104-106 (4th Cir. 1995) (arguing that a person who uses an easily monitored technology like a cordless phone is an unreliable communicant like a government informant, so communicating with a cordless phone user whose communications are being monitored is like communicating with an informant who has agreed to have his communication monitored). But that’s only one case, and I think its reasoning is very much open to question.

IV. The Arguments of the City of Ontario and the United States as Amicus Curaie

The Petitioner, the City of Ontario, and DOJ, as amicus, have each tried to respond to this tricky problem. Their solutions strike me as quite unconvincing.

The City of Ontario argues in its merits brief (see pages 61-65) that the three plaintiffs didn’t have any rights at stake because they should have known that they were communicating with someone who had no privacy rights in the text message service. The City says, basically, c’mon, we all know that people who have city issued pagers will normally have a privacy policy: If you send them a message, you should know you won’t have any privacy right. If you think you’re going to have privacy rights with someone who you know is using a city-owned pager, you’re being unreasonable and therefore can’t reasonably expect privacy.

This is a pretty bad argument, I think. First, I have no idea how someone who sends a text message to a city employee is supposed to have such a detailed understanding of both Fourth Amendment law and the city’s employment policies that they would know the recipient won’t have Fourth Amendment rights in the message. Fourth Amendment rights in new communications networks are a major question mark. But the City’s argument seems to be that individuals who texted Quon several years ago should have known that the Ninth Circuit would be wrong in 2008 when it ruled that Quon did have such rights. Seems like a pretty silly argument to me.

More broadly, even if the others did somehow know that Quon didn’t have any privacy rights when he received the messages, it’s not clearly how that matters for Fourth Amendment purposes. Is that some sort of consent to pre-delivery inspection of the messages, like you might have when you drive on to a military base and are held to have consented to an inspection for your car? If so, that’s a fact question, and there are no relevant facts about this in the record.

DOJ’s amicus brief offers a somewhat better argument, see pages 28-32, although it’s a bit confusing — and whichever of the possible arguments it is making, I don’t think I find it persuasive. I see two possible arguments on this question in DOJ’s brief. One argument is that Arch Wireless is the city’s pager service, so the arrival of the text messages at the server of Arch Wireless is essentially delivery of the message. As a result, the rights of the senders extinguished when Arch Wireless took over delivery of the communication. The second argument is more of a Rehberg. v. Paulk argument: When the text messages arrived on Quon’s machine, the senders lost privacy rights in copies generated in the course of delivery — or at least copies generated by the recipient’s provider.

I don’t think the first of these arguments works because arrival of the texts at Arch Wireless was not arrival at their destination: It seems pretty clear to me that the texts were still in transit when they were copied. And I don’t think the second argument works for all the reasons why I found Rehberg unpersuasive.

V. What Should the Supreme Court Do?

So what should the Supreme Court do with this issue? My own view is that the Supreme Court should decline to address the question. In my view, it’s misguided for the Court to try to address such a complicated and important question of Fourth Amendment law that was addressed by one paragraph in the opinion below and gets only short treatment at the tail end of the briefing by the parties. It’s a recipe for disaster to try to answer the question in this case. The Court should approach this question with caution and not answer what it can’t answer well.

Part of the problem is that the issue is incredibly important to how the Fourth Amendment applies to new technologies, and we don’t have any precedents at all in this area to serve as reference points. The Supreme Court has never directly addressed the analogous issues for phone calls and postal letters, so there isn’t Supreme Court precedent to build on to see how these principles should apply to text messages. Indeed, it’s not clear if the Fourth Amendment applies at all to text messages, e-mails, and other electronic network communications — is the Court supposed to answer that first, even though no one has bothered to brief it?

To make matters worse, Quon is being argued in late April, near the end of the Term, when there is very little time amidst all the other major cases to overcome these limitations and really get it right before opinions are out at the end of June. Finally, the question of rights in communications with those who have no Fourth Amendment rights is a hugely important question with global communications networks: For example, this question has come up before here in debates on the NSA’s powers to monitor international communications. It seems like a bad idea to try to answer this very thorny question in this case.

In my view, the Court should conclude that Jeff Quon had no Fourth Amendment rights because of the policy but then come up with a way not to answer the question of whether the others had their rights violated by the access. As a procedural matter, I’m not sure of the right way to do that. The wisest course may be to DIG the case: It was a really weird grant in the first place, as I wrote when the case was granted, and it now it turns out that the only hard issue is a novel question with tremendous future importance that is treated as an afterthought to the lower court opinion and by the briefing. The best option may be to make like Monty Python’s King Arthur and “Run Away! Run Away!,” waiting for a future case to address these issues rather than jump into them now.