Bench Memos

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John Elwood’s “Revue” of Last Term


In advance of next Monday’s opening of the 2010-2011 Term of the Court, the always entertaining John Elwood has posted online his insightful and irreverent “What Were They Thinking” review of last Term (a version of which will be published in the Green Bag).  A representative excerpt:

The Internet really took off in the mid-1990s. Here it is a mere 15 years later, and already the Supreme Court, in its usual headlong amble to address the pressing legal issues of the day, took its first Fourth Amendment case involving new digital communications: City of Ontario v. Quon. The underlying facts are a heartwarming tale of modern romance: A SWAT-team member, his wife, his police-issue pager, his girlfriend, and a few thousand smutty text messages, mostly tapped out on Department time. Who hasn’t been there before? While the police department had an official no-privacy policy, a supervisor winked at personal use of pagers. A departmental audit brought Quon’s emails to light, and he apologized for his infidelity for his wife and for bringing shame on the Police Department.

Oh, I’m sorry. Maybe that would have happened on Bizzaro World or someplace where people retained even a modest sense of decorum, but here in the United States, Quon (indeed, the whole Bizarre Love Triangle) sued. The Ninth Circuit, apparently on a dare, held that the city had violated Quon’s reasonable expectation of privacy in transmitting lewd adulterous emails on city time using city property,  which really goes without saying. The Court was thus presented with the question of a person’s reasonable expectation of privacy in text messages. Some pundits questioned whether a Court whose average member graduated college at a time when the telephone was dismissed as a fad would be able to address technological issues more complicated than inserting a wedge, but thanks to the law clerks’ extraordinary efforts to suppress instinctive eye-rolling, combined with the Justices’ heroic feats of feigned comprehension, the Court came through it admirably.

By which I mean that they were able to duck the issue a little while longer. Because of the low standard of reasonableness for searches of government employees that are not conducted for law-enforcement purposes, the Court was able to uphold the search without having to rush willy-nilly into novel Fourth Amendment issues. The Court made a virtue of its issue-duckery, saying, “[t]he judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear,” thus marking the first time since 1995 that a two-way pager has been referred to as “emerging technology.” While some commentators interpreted the Court’s reticence as an indication it takes privacy rights in digital media seriously, the longer the Court waits, the greater the likelihood that society’s “reasonable expectation of privacy” will be determined by the preferences of a 19-year-old who puts photos of  himself smoking pot on Facebook before the bong even stops smoldering.


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