Technology & Litigation

The United States Supreme Court (SCOTUS) has granted certiori on a case  in the privacy litigation arena that focuses on the question of whether a governmental employee has Fourth Amendment rights in the contents of an employer issued pager.  The case is City of Ontario v. Quon (www.ca9.uscourts.gov/datastore/opinions/2008/06/18/0755282.pdf).  In Quon, the Ninth Circuit made several decisions.  It first decided that a third party company that provided texting services to the City of Ontario was a Electronic Communication Provider and not a Remote Computing Provider for purposes of the Stored Communications Act ("SCA").  Given the impact on liability, I think this aspect of the opinion (which was not raised on cert) is very intriguing from a technology litigation / electronic discovery perspective.  If a text message company is a ECP and not a RCP, they are exposed to more liability.  This fact can be used as a sword or a shield in a litigation arena.

The remainder of the 9th Circuit opinion focuses on Fourth Amendment privacy rights in electronically stored information.  The point that was raised on cert is whether a governmental employer has an expectation of privacy in his information transmitted electronically from a government provided device.  This has some implications for Indiana privacy litigation as well as general licensing agreement negotiations.  Interestingly, if SCOTUS agrees with the 9th Circuit, the employee would have a reasonable expectation of privacy in the information, regardless of what state public record acts say.  Thus, I, Joe Citizen, would have more access to the information than the State itself.  This has the potential for interesting results.  Maybe the state will have to ask me to find out if their employees are responsibly using the equipment provided to them.  

Additionally, if the Court agrees with the 9th Circuit, a search that was conducted when there were less intrusive means of obtaining the information would not be reasonable.  This also creates a lot of grey area and room for courts (and litigants) to maneuver.  I think it certainly raises instant triable issues regarding whether a means was intrusive and what less intrusive means existed.  

Overall, this ruling should be fun, even if I personally think the more interesting question was not raised on cert.  (ie whether a third party provider is an ECP or a RCP under the SCA [you have to love acronyms]).  I'll be watching this one.