For the last time, that's not the discussion. No one is arguing that point.
Glad to hear it.
GP: "Today's S. Ct. decision in Quon v Ontario at http://eff.org/r.4mq [eff.org] (pdf) assumes w/o deciding that 4th am protects privacy of txt msgs (yay!)" Me: "No, they didn't" You: "That is not accurate on two fronts: (1) they did say exactly that, and you've been given the citation, which does matter for future Fourth Amendment causes of action"
I agree they did indicate that the 4th amendment applies to government employer review of text messages by government employees using government equipment. They most certainly did not say that the 4th amendment applies to the private employer review of the text messages of private employees using employer equipment. That question wasn't even before the court.
The court did not assume that "that the 4th amendment protects privacy of text messages" private intrusion in general, it assumed that the 4th amendment protects privacy of text messages where a government employer or other state actor is involved, subject to typical constraints and exceptions.
Now perhaps the person originally quoted understood that, and thinks that it is an enormous victory for fourth amendment jurisprudence that text messages are assumed to be protected in any circumstance, but that is not the impression I got.
No. In other words, the standard is the Fourth Amendment standard, as set forth by the exploration in the case you cited. You are, despite having it pointed out to you numerous times, continuing to conflate Fourth Amendment causes of action with areas of law relying on Fourth Amendment jurisprudence
I have no doubt that the Fourth Amendment standard has great influence over the standards adopted by courts in other circumstances - common law, state constitutional law, etc. The point is the "Fourth Amendment" standard is not binding on courts making decisions in cases not governed by the fourth amendment, except to the degree (and only to the degree) it has been adopted as part of the pertinent common law governing a non Fourth Amendment case.
That is why it is misleading to call cases pertaining to private employers "Fourth Amendment cases", because they clearly are not. The NJ Supreme Court said as much: "As is true in Fourth Amendment cases,..." Whatever the NJ court was deciding, and whatever inspiration they drew from federal Fourth Amendment case law, they were not deciding a "Fourth Amendment case", but rather a case governed by the common law and statutes of the state of New Jersey.
"The supreme courts realm is over the several states constitutional matters"
Sorry, No. Prior to the adoption of the Incorporation Doctrine at about the time of the civil war, (as a rule) the Supreme Court did not review state laws at all. The (federal level) Bill of Rights did not apply to the states until that time.
Not only that, the federal courts defer to the state courts as to the interpretation of the individual state constitutions.
"our rights against unreasonable search and seizure evaporate on federal holdings."
Not according to the Supreme Court, they don't. The real debate is about what is "reasonable", which can vary dramatically with circumstance, generally as determined by federal case law.
No doubt the Court allows authorities greater latitude on military bases than elsewhere. Overseas bases are another matter altogether. No civil jurisdiction, generally speaking.
"Individuals do not lose Fourth Amendment rights merely because they work for the government instead of a private employer." 480 U. S., at 717
Of course they don't. Those Fourth Amendment rights have nothing to do with the actions of the private employer though, but rather the actions of a government employer, and you have yet to cite anything to demonstrate otherwise.
For the last time, the restrictions of the Fourth Amendment apply only to state actors. Quit with the strawmen.
I guess we have no disagreement then.
They did, but you didn't. Look at their citations for exploration of the privacy expectation:
The statement you quote starts out "As is true in Fourth Amendment cases, the reasonableness of a claim for intrusion on seclusion has both a subjective and objective component".
In other words, this is not a Fourth Amendment case, it is just similar to one, in this respect.
It is plainly clear that you are neither a lawyer nor in possession of legal training, so your charge against the EFF and continued insistence on your nonexistent correctness is quite the show of hubris.
Here's a neat trick, go down to your local federal courthouse, military base or post office. There, now, we will make your constitutional rights disappear.
It is actually exactly the opposite. Constitutional rights are protections against government, not private action. Whatever happens to you in a federal courthouse is subject to Fourth Amendment constraints. Whatever happens to you in a private business is not (albeit subject to others).
By the way, this is what the New Jersey Supreme Court had to say on the topic, in Stengart v. Loving Care Agency (2010):
Preliminarily, we note that the reasonable-expectation-of-privacy standard used by the parties derives from the common law and the Search and Seizure Clauses of both the Fourth Amendment and Article I, paragraph 7 of the New Jersey Constitution. The latter sources do not apply in this case, which involves conduct by private parties only
The latter sources do not apply in this case? Didn't the Supreme Court of New Jersey get the memo?
No. Government employees are not a special class with regard to the Fourth Amendment, per O'Connor.
The Court held no such thing. This is what it held in O'Connor v. Ortega (1987):
The strictures of the Fourth Amendment, applied to the States through the Fourteenth Amendment, have been applied to the conduct of governmental officials in various civil activities...Thus, we have held in the past that the Fourth Amendment governs the conduct of school officials, see ibid., building inspectors, [OSHA inspectors, etc]...Searches and seizures by government employers or supervisors of the private property of their employees, therefore, are subject to the restraints of the Fourth Amendment.
See anything in there about private employers being governed by the restraints of the Fourth Amendment? Nothing in the entire decision applies to private employers. Now you have an interesting legal theory, but unless you can provide a Supreme Court citation indicating that the Fourth Amendment constrains private actions, I shall continue happily in the assurance that there is no such precedent.
You should read this article from the EFF. The Ninth Circuit case is here. There were two appeals to the Supreme Court. The Court granted certiorari on the Ontario appeal and denied it on the Arch Wireless appeal.
In the Quon v. Ontario decision, the Supreme Court held that what the Ontario Police Department did was reasonable under the Fourth Amendment. In its refusal to hear the Arch Wireless v. Quon appeal, it let the Arch Wireless part of the Ninth Circuit decision in Quon. v Arch Wireless et al stand, namely:
We hold that Arch Wireless provided an "electronic communication service" to the City. The parties do not dispute that Arch Wireless acted "knowingly" when it released the transcripts to the City. When Arch Wireless knowingly turned over the text-messaging transcripts to the City, which was a "subscriber," not "an addressee or intended recipient of such communication," it violated the SCA, 18 U.S.C. 2702(a)(1). Accordingly, judgment in Appellants' favor on their claims against Arch Wireless is appropriate as a matter of law, and we remand to the district court for proceedings consistent with this holding. (Quon v. Arch Wireless et al, Ninth Circuit Court of Appeals (2008))
The Supreme Court denied cert. when Arch Wireless appealed this point. The Court stated in the case it did hear:
Respondents argue that the search was per se unreasonable in light of the Court of Appeals' conclusion that Arch Wireless violated the SCA by giving the City the transcripts of Quon's text messages. The merits of the SCA claim are not before us...The otherwise reasonable search by OPD is not rendered unreasonable by the assumption that Arch Wireless violated the SCA by turning over the transcripts. (Ontario v. Quon (2010))
The Supreme Court declined to hear the appeal of Arch Wireless, thus (in the Ninth Circuit at least), that part of the Ninth Circuit decision (that Arch Wireless, as an "electronic communication service" provider, acted illegally, as a matter of law) stands.
Here, the Court assumed a REOP in the messages; the Fourth Amendment thus protects the text messages.
The Supreme Court decision was about government employers. Hence the applicability of the Fourth Amendment. Courts and legislatures may adopt a reasonable expectation of privacy standard in other circumstances, but if a government actor is not involved, that is at best inspired by the Fourth Amendment, not dictated by it. The rest of your comments I agree with.
the concept of a reasonable expectation of privacy (which is considered part of Fourth Amendment jurisprudence) is a status that applies to everyone, everywhere.
I am aware that the "reasonable expectation of privacy" applies to cases that properly fall under the Fourth Amendment, as well cases that properly fall under statutory privacy laws.
However, the idea that the Fourth Amendment applies to any case that does not involve the government is something that that you are going to have to provide a citation for. Even if the Supreme Court has so held (which I highly doubt), it is unquestionable that their decision in that regard would be wrong.
The Ninth circuit was overruled with regard to the issue at hand in Ontario v. Quon, which governs the actions of government employers.
The Supreme Court declined to hear the appeal in Quon v. Arch Wireless, a Ninth Circuit Court decision which governs the actions of service providers (interpreting 18 USC 2702). Not only that, the Supreme Court said the issue with service providers was irrelevant to the legality of the actions of the Ontario Police Department.
My comment applies to the legality of the actions of the service provider. Big difference.
I think a better question is whether you read what I said, not to mention both the appellate court decision in Quon v. Arch Wireless and the Supreme Court decision in Ontario v. Quon. The pertinent law in 18 USC 2702 might be a good idea too.
(1) First of all, the rules are somewhat different for private and public employers. This Supreme Court decision only applies to the latter, and they decided on much narrower grounds than you suggest, with regard to exceptions to the Fourth Amendment for government employers. The Fourth Amendment does not apply to private parties, although various other state and federal laws do, of course.
(2) In Quon. v. Arch Wireless, the Ninth Circuit court held that the service provider cannot do what they did, at least not without the explicit consent of the end user. Meaning if employers want to do this with such a service in the future they either need to forward explicit consent from every pertinent user to the service provider, so that the latter can be in the clear, or they need to install custom code on their own devices, log it themselves, and (generally speaking) notify the employee that they may be monitored anyway.
If the consent is explicit enough, yes. In order to obey the law though, the service provider probably needs a copy of that consent for each employee. Otherwise the provider has no idea whether they can legally intercept or not.
Except that the person who receives the cell phone bill can have all texts in/out included with the bill.
According to the Ninth Circuit, it is not legal for the provider to include such information except with the consent of the "originator" or "addressee" of the messages (cf. 18 USC 2702(b)(3)).
(1) Yes. A warrantless review by a government employer does have to be "motivated by a legitimate work-related purpose", according to the decision.
(2) Somewhat different rules apply to private employers. The latter generally have fewer restrictions, because the Fourth Amendment does not apply to the actions of private parties (although other laws do).
(2) Regardless of what the employer did, what Arch Wireless did was illegal (according to a Ninth Circuit court decision) and the Supreme Court decision did not change that fact.
there is absolutely no legal justification for them to be prevented from monitoring texts on equipment they own.
Under current law, as long as they do it without the service provider intercepting and providing them a copy, yes. The service provider cannot legally do the latter (cf. Quon. vs Arch Wireless, Ninth Circuit (2008), which still stands).
An employer is generally able to do it themselves on equipment they own (which would require custom software in this case) of course.
However, the Electronic Communications Privacy Act says that while employers have the right to monitor employee's phone conversations, they must stop if/when they realize that the conversation is personal, not business.
Strictly speaking, The ECPA says no such thing. That was a determination of the Eleventh Circuit in Watkins v. Berry (1983), interpreting the phrase "ordinary course of business". Seems like a reasonable rule to me.
If employers can monitor your text messages why not your voice conversations?
Employers generally have no means of monitoring text messages sent to and from employer provided phones unless the service provider breaks the law. The Ninth Circuit decision in Quon vs. Arch Wireless stands. Doubly so for voice conversations.
The only way around this effective constraint would be for an employer to be a service provider, the way employers typically provide email service on work computers. Or presumably, the employer could legally install custom code on employer provided phones that logs text messages. Generally speaking the employer has to inform the employee of all this, of course. Either way, the service provider cannot do it for them. That might seem like a technicality, but that is the law as it stands.
GP: "Today's S. Ct. decision in Quon v Ontario at http://eff.org/r.4mq (pdf) assumes w/o deciding that 4th am protects privacy of txt msgs (yay!)"
No, they didn't. The 4th amendment only applies to the actions of the government, including (potentially) government employers. It has no direct relevance to the actions of private employers or others. There are separate laws that deal with the latter (the ECPA and SCA in this case), the Constitution has nothing to do with it.
Not only that, the Court held today and has previously held that government employers (which the 4th amendment does apply to) have wide exceptions to the 4th amendment in their role in that capacity.
If they explicitly allow (or encourage) use of these company resources for personal use, then they should be restricted from viewing personal use
A few points:
(1) Service providers cannot legally disclose the contents of text messages to employers without the originators or addressees permission. The 9th Circuit decision stands.
(2) The employee got in trouble for messages he sent while on duty. The department avoided (as much as possible) evaluating messages sent when he was not.
(3) The employee's case against his employer turned in part on his written acknowledgement that all "network activity" may be monitored.
(4) Congress could pass a law as you suggest, however the problem is that the technical measures for the prior determination of "personal" vs. "work" use do not yet exist, and Congress would have to mandate that all future devices include them. Something like a button on the phone or email client that indicates that this message is a personal one, and an employer must not access the contents if use of that button is allowed.
So the Supreme Court ruled that the department had the legal authority to review the pager messages, but the 9th Circuit says the service provider violated a federal law in turning over the records without Quon's permission?
The legal authority to review them if they have a copy of them, yes. The department cannot force the provider to violate the law, however.
I doubt SMS interception equipment is readily available to the general public, which means unauthorized third party interception, use, and disclosure is almost certainly illegal (at least in the United States) - cf. 18 USC 2511(2)(g).
Not that that would affect this case. The employer had implicit authorization. It also doesn't mean you shouldn't take the non-encryption into account when choosing what to send of course.
The last few unfortunate years of its existence aside, BYTE was the best computer magazine then or since. As has been said, something like the Scientific American of the computer world in its time. Unparalleled exposition about the latest trends in computer design, programming languages, etc. Plus in depth reviews actually worth reading. Outstanding columnists, etc. Virtually every issue from the 1980s is a gem.
Slashdot Mirror
Glad to hear it.
I agree they did indicate that the 4th amendment applies to government employer review of text messages by government employees using government equipment. They most certainly did not say that the 4th amendment applies to the private employer review of the text messages of private employees using employer equipment. That question wasn't even before the court.
The court did not assume that "that the 4th amendment protects privacy of text messages" private intrusion in general, it assumed that the 4th amendment protects privacy of text messages where a government employer or other state actor is involved, subject to typical constraints and exceptions.
Now perhaps the person originally quoted understood that, and thinks that it is an enormous victory for fourth amendment jurisprudence that text messages are assumed to be protected in any circumstance, but that is not the impression I got.
I have no doubt that the Fourth Amendment standard has great influence over the standards adopted by courts in other circumstances - common law, state constitutional law, etc. The point is the "Fourth Amendment" standard is not binding on courts making decisions in cases not governed by the fourth amendment, except to the degree (and only to the degree) it has been adopted as part of the pertinent common law governing a non Fourth Amendment case.
That is why it is misleading to call cases pertaining to private employers "Fourth Amendment cases", because they clearly are not. The NJ Supreme Court said as much: "As is true in Fourth Amendment cases,..." Whatever the NJ court was deciding, and whatever inspiration they drew from federal Fourth Amendment case law, they were not deciding a "Fourth Amendment case", but rather a case governed by the common law and statutes of the state of New Jersey.
"The supreme courts realm is over the several states constitutional matters"
Sorry, No. Prior to the adoption of the Incorporation Doctrine at about the time of the civil war, (as a rule) the Supreme Court did not review state laws at all. The (federal level) Bill of Rights did not apply to the states until that time.
Not only that, the federal courts defer to the state courts as to the interpretation of the individual state constitutions.
"our rights against unreasonable search and seizure evaporate on federal holdings."
Not according to the Supreme Court, they don't. The real debate is about what is "reasonable", which can vary dramatically with circumstance, generally as determined by federal case law.
No doubt the Court allows authorities greater latitude on military bases than elsewhere. Overseas bases are another matter altogether. No civil jurisdiction, generally speaking.
Of course they don't. Those Fourth Amendment rights have nothing to do with the actions of the private employer though, but rather the actions of a government employer, and you have yet to cite anything to demonstrate otherwise.
I guess we have no disagreement then.
The statement you quote starts out "As is true in Fourth Amendment cases, the reasonableness of a claim for intrusion on seclusion has both a subjective and objective component".
In other words, this is not a Fourth Amendment case, it is just similar to one, in this respect.
Ditto.
Here's a neat trick, go down to your local federal courthouse, military base or post office. There, now, we will make your constitutional rights disappear.
It is actually exactly the opposite. Constitutional rights are protections against government, not private action. Whatever happens to you in a federal courthouse is subject to Fourth Amendment constraints. Whatever happens to you in a private business is not (albeit subject to others).
By the way, this is what the New Jersey Supreme Court had to say on the topic, in Stengart v. Loving Care Agency (2010):
The latter sources do not apply in this case? Didn't the Supreme Court of New Jersey get the memo?
No. Government employees are not a special class with regard to the Fourth Amendment, per O'Connor.
The Court held no such thing. This is what it held in O'Connor v. Ortega (1987):
See anything in there about private employers being governed by the restraints of the Fourth Amendment? Nothing in the entire decision applies to private employers. Now you have an interesting legal theory, but unless you can provide a Supreme Court citation indicating that the Fourth Amendment constrains private actions, I shall continue happily in the assurance that there is no such precedent.
You should read this article from the EFF. The Ninth Circuit case is here. There were two appeals to the Supreme Court. The Court granted certiorari on the Ontario appeal and denied it on the Arch Wireless appeal.
In the Quon v. Ontario decision, the Supreme Court held that what the Ontario Police Department did was reasonable under the Fourth Amendment. In its refusal to hear the Arch Wireless v. Quon appeal, it let the Arch Wireless part of the Ninth Circuit decision in Quon. v Arch Wireless et al stand, namely:
The Supreme Court denied cert. when Arch Wireless appealed this point. The Court stated in the case it did hear:
The Supreme Court declined to hear the appeal of Arch Wireless, thus (in the Ninth Circuit at least), that part of the Ninth Circuit decision (that Arch Wireless, as an "electronic communication service" provider, acted illegally, as a matter of law) stands.
Here, the Court assumed a REOP in the messages; the Fourth Amendment thus protects the text messages.
The Supreme Court decision was about government employers. Hence the applicability of the Fourth Amendment. Courts and legislatures may adopt a reasonable expectation of privacy standard in other circumstances, but if a government actor is not involved, that is at best inspired by the Fourth Amendment, not dictated by it. The rest of your comments I agree with.
The call or text is to the owner of the phone
Not according to the Ninth Circuit it is not. Good theory though.
the concept of a reasonable expectation of privacy (which is considered part of Fourth Amendment jurisprudence) is a status that applies to everyone, everywhere.
I am aware that the "reasonable expectation of privacy" applies to cases that properly fall under the Fourth Amendment, as well cases that properly fall under statutory privacy laws.
However, the idea that the Fourth Amendment applies to any case that does not involve the government is something that that you are going to have to provide a citation for. Even if the Supreme Court has so held (which I highly doubt), it is unquestionable that their decision in that regard would be wrong.
The Ninth circuit was overruled with regard to the issue at hand in Ontario v. Quon, which governs the actions of government employers.
The Supreme Court declined to hear the appeal in Quon v. Arch Wireless, a Ninth Circuit Court decision which governs the actions of service providers (interpreting 18 USC 2702). Not only that, the Supreme Court said the issue with service providers was irrelevant to the legality of the actions of the Ontario Police Department.
My comment applies to the legality of the actions of the service provider. Big difference.
I think a better question is whether you read what I said, not to mention both the appellate court decision in Quon v. Arch Wireless and the Supreme Court decision in Ontario v. Quon. The pertinent law in 18 USC 2702 might be a good idea too.
(1) First of all, the rules are somewhat different for private and public employers. This Supreme Court decision only applies to the latter, and they decided on much narrower grounds than you suggest, with regard to exceptions to the Fourth Amendment for government employers. The Fourth Amendment does not apply to private parties, although various other state and federal laws do, of course.
(2) In Quon. v. Arch Wireless, the Ninth Circuit court held that the service provider cannot do what they did, at least not without the explicit consent of the end user. Meaning if employers want to do this with such a service in the future they either need to forward explicit consent from every pertinent user to the service provider, so that the latter can be in the clear, or they need to install custom code on their own devices, log it themselves, and (generally speaking) notify the employee that they may be monitored anyway.
If the consent is explicit enough, yes. In order to obey the law though, the service provider probably needs a copy of that consent for each employee. Otherwise the provider has no idea whether they can legally intercept or not.
Except that the person who receives the cell phone bill can have all texts in/out included with the bill.
According to the Ninth Circuit, it is not legal for the provider to include such information except with the consent of the "originator" or "addressee" of the messages (cf. 18 USC 2702(b)(3)).
(1) Yes. A warrantless review by a government employer does have to be "motivated by a legitimate work-related purpose", according to the decision.
(2) Somewhat different rules apply to private employers. The latter generally have fewer restrictions, because the Fourth Amendment does not apply to the actions of private parties (although other laws do).
(2) Regardless of what the employer did, what Arch Wireless did was illegal (according to a Ninth Circuit court decision) and the Supreme Court decision did not change that fact.
The only exception is national security, under presidential authority, and that is highly controversial. Otherwise it requires a law.
there is absolutely no legal justification for them to be prevented from monitoring texts on equipment they own.
Under current law, as long as they do it without the service provider intercepting and providing them a copy, yes. The service provider cannot legally do the latter (cf. Quon. vs Arch Wireless, Ninth Circuit (2008), which still stands).
An employer is generally able to do it themselves on equipment they own (which would require custom software in this case) of course.
However, the Electronic Communications Privacy Act says that while employers have the right to monitor employee's phone conversations, they must stop if/when they realize that the conversation is personal, not business.
Strictly speaking, The ECPA says no such thing. That was a determination of the Eleventh Circuit in Watkins v. Berry (1983), interpreting the phrase "ordinary course of business". Seems like a reasonable rule to me.
If employers can monitor your text messages why not your voice conversations?
Employers generally have no means of monitoring text messages sent to and from employer provided phones unless the service provider breaks the law. The Ninth Circuit decision in Quon vs. Arch Wireless stands. Doubly so for voice conversations.
The only way around this effective constraint would be for an employer to be a service provider, the way employers typically provide email service on work computers. Or presumably, the employer could legally install custom code on employer provided phones that logs text messages. Generally speaking the employer has to inform the employee of all this, of course. Either way, the service provider cannot do it for them. That might seem like a technicality, but that is the law as it stands.
GP: "Today's S. Ct. decision in Quon v Ontario at http://eff.org/r.4mq (pdf) assumes w/o deciding that 4th am protects privacy of txt msgs (yay!)"
No, they didn't. The 4th amendment only applies to the actions of the government, including (potentially) government employers. It has no direct relevance to the actions of private employers or others. There are separate laws that deal with the latter (the ECPA and SCA in this case), the Constitution has nothing to do with it.
Not only that, the Court held today and has previously held that government employers (which the 4th amendment does apply to) have wide exceptions to the 4th amendment in their role in that capacity.
If they explicitly allow (or encourage) use of these company resources for personal use, then they should be restricted from viewing personal use
A few points:
(1) Service providers cannot legally disclose the contents of text messages to employers without the originators or addressees permission. The 9th Circuit decision stands.
(2) The employee got in trouble for messages he sent while on duty. The department avoided (as much as possible) evaluating messages sent when he was not.
(3) The employee's case against his employer turned in part on his written acknowledgement that all "network activity" may be monitored.
(4) Congress could pass a law as you suggest, however the problem is that the technical measures for the prior determination of "personal" vs. "work" use do not yet exist, and Congress would have to mandate that all future devices include them. Something like a button on the phone or email client that indicates that this message is a personal one, and an employer must not access the contents if use of that button is allowed.
So the Supreme Court ruled that the department had the legal authority to review the pager messages, but the 9th Circuit says the service provider violated a federal law in turning over the records without Quon's permission?
The legal authority to review them if they have a copy of them, yes. The department cannot force the provider to violate the law, however.
I doubt SMS interception equipment is readily available to the general public, which means unauthorized third party interception, use, and disclosure is almost certainly illegal (at least in the United States) - cf. 18 USC 2511(2)(g).
Not that that would affect this case. The employer had implicit authorization. It also doesn't mean you shouldn't take the non-encryption into account when choosing what to send of course.
The last few unfortunate years of its existence aside, BYTE was the best computer magazine then or since. As has been said, something like the Scientific American of the computer world in its time. Unparalleled exposition about the latest trends in computer design, programming languages, etc. Plus in depth reviews actually worth reading. Outstanding columnists, etc. Virtually every issue from the 1980s is a gem.