Notice & Comment

Privacy/Information Technology: Oral Argument in City of Ontario v. Quon, by Jonathan Rusch

Last Monday, April 19, the U.S. Supreme Court heard oral argument in City of Ontario v. Quon, No. 08-1332, a case with potentially significant effects in workplaces across the country. The critical issue is whether the Ontario Police Department violated the Fourth Amendment by searching the department-issued pager of one of its officers who was using the pager to send and receive messages for both his wife and his mistress. The New York Times has an interesting summary of the oral argument.

As the summary indicates, one of the critical elements in the analysis may prove to be whether the Department’s policy on use of its pagers was sufficiently well-defined to preclude the officer’s use of the pager for sexually explicit messages. While the formal policy told users they should have no expectation of privacy, it also allowed “light personal communications.” In addition, as the Times noted, a police lieutenant had established an informal policy that “those who paid for messages over a monthly maximum would not have their records inspected.” These divergent elements may complicate the Court’s task of rendering a decision in a manner consistent with other Fourth Amendment decisions.

This post was originally published on the legacy ABA Section of Administrative Law and Regulatory Practice Notice and Comment blog, which merged with the Yale Journal on Regulation Notice and Comment blog in 2015.

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