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Supreme Court Still Apparently Unfamiliar With Texting and Call Waiting

Yesterday, the Supreme Court heard argument in City of Ontario v. Quon. The case is about whether a SWAT team sergeant in Ontario, Calif., had a reasonable expectation of privacy in text messages sent via a department-issued pager, despite a department policy stating pretty clearly that messages could be audited at any time.

Not just any text messages, mind you, but some dirty, dirty text messages between said sergeant and 1) his wife, 2) his mistress and 3) a fellow officer. "To Protect and Sext" would look great on the side panels of a black and white.

The 9th Circuit held (PDF) that the cop did have such an expectation of privacy, and that the search of his messages conducted by the city (with the aid of the wireless company) after Sgt. Quon repeatedly went over his message allowance was unreasonable as a matter of law. But, then again, this is the 9th Circuit we're talking about. Marcia Coyle had some pregame predictions of the argument in Friday's National Law Journal.

According to Lyle Denniston's recap at SCOTUSBlog, the Justices seemed to be leaning pretty heavily toward reversing, and finding there was no reasonable expectation of privacy. But Adam Liptak, in The New York Times, revealed an interesting, and sort of scary exchange between the Justices and Sgt. Quon's counsel:

“What happens, just out of curiosity,” Chief Justice Roberts asked, “if he is on the pager and sending a message and they are trying to reach him for, you know, a SWAT team crisis? Does the one kind of trump the other, or do they get a busy signal?”

Dieter Dammeier, a lawyer for Sergeant Quon, said he was not sure.

Justice Kennedy suggested that the caller might get a recorded message.

“He’s talking to the girlfriend,” Justice Kennedy said, and the caller “gets a voice message that says: ‘Your call is very important to us. We will get back to you.’ ”

We'll give Kennedy a pass for not quite grasping text messages -- he's almost 74. But OMG, Roberts, C.J.? A busy signal? Isn't your 10-year-old daughter addicted to texting yet? Here we are, speculating about whether the next potential justice likes girls, and the current ones don't even know how to abbreviate "Just Freaking Google It?" YYSSW.

The WSJ Law Blog has a few more frightening excerpts from the argument here.

Posted by Eric Lipman on April 20, 2010 at 10:40 AM | Permalink | Comments (0)


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