HL Chronicle of Data Protection : Privacy Lawyers & Attorneys : Hogan Lovells Law Firm : Data Security, E-Commerce & Technology

Sometimes Fourth Amendment cases (which by definition arise in a governmental context) have implications for consumer privacy law since the "reasonable expectation of privacy" analysis can be employed in both areas.  Yesterday's U.S. Supreme Court 9-0 ruling in United States v. Jones that the warrantless attachment of a GPS device to a car for monitoring purposes violated the Fourth Amendment offers little guidance in the consumer privacy context as the majority of the Court did not rely on an "expectation of privacy" analysis.  The Court's main opinion, written by Justice Scalia, focused on narrow issue of whether there was a trespass when the GPS device was attached to the suspect's car.  Concluding that a trespass occurred, the majority of the Court found that a warrant was required under the Fourth Amendment.  Justice Scalia delivered the opinion of the Court in which Chief Justice Roberts, and Justices Kennedy, Thomas and Sotomayor joined.  Justice Sotomayor wrote her own concurring opinion and Justice Alito filed an opinion concurring in the judgment in which Justices Ginsburg, Breyer and Kagan joined.     

The main opinion of the Court chose not to address the issue of whether the suspect had a reasonable expectation of privacy not to be monitored, which was another available avenue of analysis.  Justice Alito said: "I would analyze the question presented in this case by asking whether respondent's reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove."  And Justice Sotomayor in her concurrence illustrated how far the Court could have gone to address the "reasonable expectation of privacy"  issue:

[I]t may be necessary to reconsider the premise that an individual has no reasonable expectation­ of privacy in information voluntarily disclosed to third parties. (citation omitted). This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. Perhaps, as Justice Alito notes, some people may find the “tradeoff” of privacy for convenience “worthwhile,” or come to accept this “diminution of privacy” as “inevitable,” and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Gov­ernment of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection. Smith, 442 U. S., at 749 (Marshall, J., dissenting) (“Privacy is not a discrete commodity, possessed absolutely or not at all. Those who disclose certain facts to a bank or phone company for a limited business purpose need not assume that this information will be released to other persons for other purposes”); see also Katz, 389 U. S., at 351–352 (“[W]hat [a person] seeks to preserve as private, even in an area accessible to the public, may be constituttionally­ protected”).

Had the Court engaged in a "reasonable expectation of privacy" analysis, that could have had an impact on the use of tort and consumer protection law to pursue privacy claims.  One could imagine the FTC declaring "unfair" under Section 5 the kind of data use deemed to have violated a reasonable expectation of privacy under the Fourth Amendment.

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Yesterday, the Supreme Court reversed a decision of the Ninth Circuit in City of Ontario v. Quon and unanimously decided in favor of a public employer that had engaged in a review of employee text messages for a legitimate work-related purpose.

Justice Kennedy, writing for all members of the Court except Justice Scalia (who supported the outcome in a concurrence) expressly avoided a decision on what expectation of privacy might be reasonable in new communications devices.  "The Court must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer," he wrote.  Instead, the Court assumed the employee, a police officer in Ontario, California, had such an expectation of privacy in his text messages sent on a pager but found that the employer’s review of the messages for administrative/accounting reasons was not unreasonable.      

 For background on the specific facts of the case, see our prior blog post regarding the oral argument before the Supreme Court and our discussion of the case after the Supreme Court granted certiorari.

As observed by Hogan Lovells in an Associated Press interview  “the decision made clear that ‘if the employer is doing something for a legitimate business purpose, it’s not likely to be [deemed by a court to be] unreasonable.’”   Notably, Justice Kennedy in responding to comments of Justice Scalia in his concurrence, observed that just as the public employer's search was reasonable because of its legitimate administrative/accounting purpose, it would also be "regarded as reasonable and normal in the private-employer context".

If, as seems likely, the legitimate business purpose of an employer's search becomes a primary focus of courts following this decision, an earlier e-mail private employer privacy tort cases  Smyth v. Pillsbury, C.A. No.95-5712, (E.D. Pa. 1996) could have new vitality. Smyth held  that held the employer’s legitimate purpose for monitoring trumped an employee'ss expectation of privacy even where employees were told by the employer that that they would not be monitored. 

That is not to say that employer policies limiting or eliminating expectations of privacy are not important, as the Court yesterday observed in dicta: 

[E]mployer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated.  

Notably, the Courts’ discussion of appropriate employer policies was in the context of the issue not decided, the reasonable expectation of the employees. But as we reported recently with respect to a New Jersey Supreme Court case on private employer monitoring, employer-set expectations are still very important when it comes to the boundaries for employer searches of electronic communications.    

 While the court expressly did not resolve fundamental issues concerning employees’ expectation of privacy in workplace electronic communications, private employers are well-advised to continue: (1) implementing workplace monitoring policies that clearly communicate the scope of employer rights to monitor workplace electronic communications (over any medium); (2) deploying  appropriate training and other practices to minimize the risk that an employer’s actions might undermine its official policies through mixed signals (and therefore result in employees having an expectation of privacy); and (3)  to only engage in monitoring for “legitimate, work related purpose[s]” that are not “excessive in scope."

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