Part 3 of 3: Privacy Implications for Counsel from Quon
In the case City of Ontario, California, et al. v. Quon, mentioned in the previous post, the question remains if it truly matters if technology issued by the employer lowers one’s expectation of privacy. Quon involved a public sector employer presenting a different and heightened level of privacy. However, the Supreme Court does not appear to differentiate between a public employee and private citizen when it comes to a subjective expectation of privacy in electronic communications that are not work-related – despite being transmitted using a mobile communications device issued by an employer. Notably, the Supreme Court explicitly stated that it “…must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer, and the judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.” Importantly, Quon does not establish that the Fourth Amendment requires that an employer be circumspect in how it reviews use of its technology.
All attorneys, regardless of their practice areas, can learn a great deal from the privacy implications raised in Quon. Counsel must not rest simply knowing a client uses mobile messaging device, but must resolve the following issues, which are not all-inclusive and will be case specific: Determine the setting in which the client used mobile communications (e.g., public or private employment setting). Investigate the usage and privacy policies for mobile communications issued by the employer or agency to the client. When private actors are at issue, there is no legally founded right to privacy in a verbal representation. Evaluate the contractual relationship between the mobile communications carrier and the user – what are the “terms and conditions” applicable to the carrier’s service? Personal e-mail accounts for a client may be accessible and subject to discovery if the information technology schematics and policies for the entity provides for it. Therefore, all counsel must ensure that clients use personal computers and mobile communications devices. Determine the messaging gateway system used by the employer or agency to which may betray the privacy of the content by the nature of the system (e.g., copying all messages sent and received to a third-party server). Confirm the client understands the type of technology used by the employer or agency and the industry in which it is being employed. For example, a pager issued to law enforcement who are first responders are likely less private than a mobile handheld issued to a physician at a medical facility or attorney at a law firm.
** This is the last part in a three-part series which comprise an abridged version of the article “Increase of Wireless Communication Creates New Privacy Issues,” written by Daniel Garrie and published in the Los Angeles Daily Journal.