Lots of discussion about the Quon case focused on the lack of technology expertise by the Justices on the Supreme Court. Actually, most people labeled them as Luddites. DC Dicta even claims that Chief Justice Roberts writes his opinions in long hand with pen and paper.
This issue that I am hoping to see addressed is how a stated policy on the use of a company’s hardware and network can be enforced in light of an employee’s expectations of privacy.
I doubt that issue will be addressed directly. The Quon case involves a government employee so the discussion of the issue will likely focus on the Fourth Amendment protection. These protections are largely irrelevant for private employees.
Even if the Justices avoid the Fourth Amendment issues, they may decide the case under the Stored Communications Act. That’s a rather boring and technical law. It’s also largely irrelevant to the use of a company’s hardware and network. Although it may provide some insight for the use of cloud computing and web 2.0 site.
The United States Government, through the arguments of Neal K. Katyal, Deputy Solicitor General, seemed to ask the Court to adopt a bright-line rule that a company can trump the reasonableness of any employee’s expectation of privacy by issuing a policy that employees have no privacy in communications when using the company-provided hardware or network.
The Justices seemed fairly skeptical of that kind of bright-line rule in their questions of Mr. Katyal.
The problem is that tightly crafting laws to specifically address the use of particular communication technologies will fail. In the current environment, the technological advances in communications is moving much faster than the cogs of bureaucracy in crafting regulations. The Supreme Court (well, at least Justice Alito) recognized that the expectations of privacy with new communication are in flux.
“There isn’t a well-established understanding about what is private and what isn’t private. It’s a little different from putting garbage out in front of your house, which has happened for a long time.”
The ruling in the case is expected sometime June at the end of the Supreme Court’s term. It’s certainly something for compliance professionals to keep an eye on.
Image of P2000 Pager.JPG is by Kevster