reasonable expectation of privacy

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In an important decision for employers, 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. The decision, a victory for employers, provides helpful guidance for management of electronic communication systems and workplace searches. Read this alert to learn more about the decision and how it may affect you.
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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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My very first blog post addressed a precedent-setting decision of the Central District of California holding that federal agents could not conduct a border search of the private and personal information stored on a traveler’s computer hard drive or electronic storage devices without reasonable suspicion. Eighteen months later, the Ninth Circuit has squarely reversed that decision. In a short opinion filed April 21, 2008, Judge O’Scannlain wrote in U.S. v. Arnold, No. 06-50581, that “reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border.” As far as the Ninth Circuit is concerned, for purposes of border searches under the Fourth Amendment, laptops and other electronic storage devices are not so much like a home or the human mind – they are more akin to luggage or a car.
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