Privacy Law Blog : Privacy Lawyers & Attorneys : Proskauer Rose Law Firm : CAN-SPAM, FCRA, FACTA

On June 17, 2010, in a decision authored by Justice Anthony Kennedy, the U.S. Supreme Court unanimously overturned a decision by the U.S. Court of Appeals for the Ninth Circuit in a case involving an employee’s assertion that a government employer had violated the Fourth Amendment by unreasonably obtaining and reviewing personal text messages sent and received on employer-issued pagers.  Click here to read our Client Alert about this important decision.

In case you were wondering, we previously reported on the Ninth Circuit's decision, and denial of rehearing en banc, in Quon v. Arch Wireless here and here.

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On Tuesday, the Ninth Circuit denied rehearing en banc in Quon v. Arch Wireless, previously discussed here.  The dissent (1)  disagrees with the panel's conclusion that the SWAT team members had a reasonable expectation of privacy in the text messages on the grounds that the decision undermines the standard established by the Supreme Court in O’Connor v. Ortega, 480 U.S. 709 (1987); and (2)  finds that the method used by the panel to determine whether the search was reasonable conflicts with Supreme Court precedent holding that the Fourth Amendment does not require the government to use the “least intrusive means” when conducting a “special needs” search.  The dissent can be found here.  Judge Wardlaw's concurrence in the denial of rehearing en banc can be found here.  We will keep you posted on this one.

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