Alaska Employment Law

The United States Supreme Court has accepted review of a Ninth Circuit privacy rights case involving text messaging and police use of cell phones and pagers.  The case is Quon v. Arch Wireless, 529 F.3d 892 (9th Cir. 2009).   See here for earlier analysis on AEL.

Predictions are always problematic, but I believe that the Court will reverse, citing and relying upon O’Connor v. Ortega, 480 U.S. 709 (1987).  Under O’Connor, public employees’ privacy rights are subject to an overall general reasonableness test that tracks current Fourth Amendment doctrine.  In order to pass constitutional scrutiny, a search need not employ the least intrusive or even less intrusive means or methods to accomplish its goal.  Instead, a search need only be reasonable under all of the circumstances. 

I am probably the last living analyst who believes that the Fourth Amendment’s Warrant Clause should be resurrected and enforced.  See Fisher, “Cracking Down on Soccer Moms and Other Urban Legends on the Frontier of the Fourth Amendment: Is It Finally Time to Re-Define Searches and Seizures?,” 38 Willamette L. Rev. 137 (2002).  Nevertheless, on balance, I believe that the dissent’s analysis is sound and well-reasoned.  

It is difficult to see how a police officer on a SWAT team would have any reasonable expectation of privacy in text messages sent on a police-issued pager that was restricted to official use.  It is even more difficult to explain why an audit of text messages would be unreasonable, particularly when, as here, it was for administrative purposes (to determine if existing character limits were sufficient for work-related purposes).  It is correct that the police department could have adopted a less intrusive means or method to accomplish the same goal.  However, that is not required under current Fourth Amendment doctrine.