Supreme Court OKs search of police pager

All but one justice conclude, however, that technology is changing too fast to craft a general rule specifying when government employees' gadgets can be searched.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
2 min read

The U.S. Supreme Court on Thursday said a police department could legally review text messages on a department-issued pager that a SWAT team member used for personal conversations while on duty.

Jeff Quon, who worked as a sergeant in Ontario, Calif., did not have his privacy rights violated when a supervisor discovered that 90 percent of messages sent while on duty were personal, the justices unanimously ruled.

What makes this case unique is that the Supreme Court went out of its way to avoid setting a precedent for what kind of searches of government employees' electronic devices are reasonable or unreasonable.

Technology is changing too quickly, and social norms remain too malleable, for judges to set broad rules that "might have implications for future cases that cannot be predicted," Justice Anthony Kennedy wrote.

"The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear," Kennedy said. "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."

In general, the Fourth Amendment says government agencies may not engage in warrantless searches of papers, property, or electronic devices. But the Supreme Court decided long ago that when a government agency is the employer, the "special needs" of the workplace environment create an exception to that general rule.

Quon had claimed that he had a Fourth Amendment right to privacy in his text messages, even though he had signed a statement acknowledging that the police department "reserves the right to monitor and log all network activity." An in-person briefing and subsequent letter from the department extended that policy to department-issued pagers.

Some of those text messages showed that Quon was allegedly cheating on his wife, Jerilyn Quon, and sending sexually-explicit messages to his girlfriend April Florio. (All three members of this love triangle sued the city over the text messages.)

Justice Antonin Scalia wrote a separate opinion but agreed in the judgment, which overturned a decision from the 9th Circuit Court of Appeals. Scalia said that his fellow justices should have stated a general rule saying government employee searches are reasonable instead of relying on the "indefensible" excuse that technology is moving too quickly.

"The-times-they-are-a-changin' is a feeble excuse for disregard of duty," Scalia wrote.