The court could take a very narrow path out of the case. Because the employees involved are police officers, several justices said their communications might be sought by defense lawyers in criminal cases.
“I mean, wouldn’t you just assume that that whole universe of conversations by SWAT officers who were on duty 24-7 might well have to be reviewed by some member of the public or some of their superiors?” Justice John Paul Stevens said.
Justice Sonia Sotomayor wondered whether the reason for looking at the messages mattered. “Let’s assume that in this police department, everyone knew, the supervisors and everyone else, that the police department people spoke to their girlfriends at night,” Sotomayor said. “And one of the chiefs, out of salacious interest, decides: I’m going to just go in and get those texts, those messages, because I just have a prurient interest.”
It wouldn’t matter, said Kent Richland, the city’s lawyer, and Justice Antonin Scalia chimed that he agreed. “So when the filthy-minded police chief listens in, it’s a very bad thing, but it’s not offending your right of privacy. You expected somebody else could listen in, if not him,” Scalia said.
Chief Justice John Roberts was alone in asking questions that suggested he might side with the officers. Roberts said the department might have allowed officers to black out any messages they were willing to pay for, providing an accurate picture of text-message usage without compromising privacy.
The argument also displayed the limits on the justices’ mastery of modern communications devices, as Roberts tried to figure out the role of the text-messaging service in enabling an exchange between two people.
“I thought, you know, you push a button; it goes right to the other thing,” Roberts said.
“You mean it doesn’t go right to the other thing?” Scalia said.
The case is City of Ontario v. Quon, 08-1332. A decision is expected later this year.
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