Sexting Case Befuddles Supreme Court: 'What's The Difference Between Email And A Pager?'

The case of City of Ontario vs. Quon, which concerns 'sexting' via employer-issued pagers and bears major implications for employee privacy rights, headed to the Supreme Court this week.

As we wrote here, the case concerns Sergeant Jeff Quon and three other plaintiffs, including Quon's wife and mistress, who were employed with the Ontario police department. The plaintiffs sued the Chief of police for reading sexually explicit messages that were sent via pagers provided by the department. A lower court ruled in favor of the plaintiffs in 2008, and now the defendants have appealed their case, which headed for the Supreme Court.

As the Supreme Court began hearing oral arguments in the case, it seemed that the justices required clarification on some of the technological details of the case.

LawyersUSA's DC Dicta blog offers up some examples:

The first sign was about midway through the argument, when Chief Justice John G. Roberts, Jr. - who is known to write out his opinions in long hand with pen and paper instead of a computer - asked what the difference was “between email and a pager?”

At one point, Justice Anthony Kennedy asked what would happen if a text message was sent to an officer at the same time he was sending one to someone else.

“Does it say: ‘Your call is important to us, and we will get back to you?’” Kennedy asked.

Justice Antonin Scalia wrangled a bit with the idea of a service provider.

“You mean (the text) doesn’t go right to me?” he asked.

Then he asked whether they can be printed out in hard copy.

“Could Quon print these spicy little conversations and send them to his buddies?” Scalia asked.

DC Dicta adds the even Quon's attorney had some "technical difficulties," stumbling to explain the intricacies of whether and how text messages could be deleted.

In this case, it seems an intimate familiarity not only with constitutional law and legal precedents, but also with the ins-and-outs of WSPs and SMS, are crucial to the case. Yet it should be noted that the Justices' queries may not signal their confusion, but rather their efforts to clarify specific, key details pertaining to the 'sexting' exchange.

Read about the most controversial sexting scandals that have ensnared celebrities, politicians, and even teachers.

Comments

[Loni Wolf]

03:23 PM on 04/22/2010

First off, I think the guy is a sleaze bag, , but Everybody thinks the case is about dirty texts on company time & equipment. NOT .
It's about a promise made to employees in writing that overages on texting above 25,000 character per month would be ok , not reviewed & considered private as long as they paid overages. This ruling by the Lt. created an exception to policy & an expectation of privacy. according to the lower court.
The dep't arbitraily changed their minds. After a few months the lieutenant got tired of being "a bill collector," and the police chief decided the department should review the messages of the highest users to see if the job required freer message capacity.

The department asked the pager service to provide transcripts, and a review showed that the biggest texter, Sgt. Jeff Quon, had exchanged hundreds of sexually explicit messages with his estranged wife, his girlfriend and a fellow SWAT officer. Quon paid for those messages, but he was subsequently reprimanded for using the pager for personal purposes on the job, and for using obscene language on the pager -- a violation of department rules.

After that, Quon and three people sued the department for violating their privacy. The FEDERAL court ruled the department had violated their expectation of privacy because they had led the officers to believe they could use their pagers privately, for personal use.

Are Huge legal bills the best use of Taxpayer $ for a state

[mammon55]

04:05 PM on 04/22/2010

with all the technology issues i think this is something to be considered by the court
or they will just have lower courts set new presidents every time something like this comes up and it will come up the more we use tech

[think-it-over]

02:35 AM on 04/23/2010

Since there was a written policy that was (probably) at odds with the promise, it wasn't a wise choice for the defendants to rely on it. This case is about the 4th amendment rights of people to be free from unreasonable searches. Police agencies and their supporters devote a lot of effort to arguing that people didn't have a reasonable expectation of privacy, and that some evidence was therefore obtained legally, and without violating the rights of those individuals. That makes it delightfully ironic that the plaintiffs in this case are police officers and those who work within a police department. In this case I think the ruling will be that the "evidence" was obtained lawfully.

[khg1]

12:04 PM on 04/22/2010

This is yet another reason we need YOUNGER Supreme Court Justices appointed!!

"Chief Justice John G. Roberts, Jr. - who is known to write out his opinions in long hand with pen and paper instead of a computer."

Come on get with the MILLENNIUM!

[flormail]

01:22 PM on 04/22/2010

Actually, choosing to use long hand over a computer is not the issue. It is being so completely out of touch that you use long hand soley because you don't know there's an alternative as evidenced by the fact they don't know the difference between email and a pager. Many writers chose to use long hand when type writers were available, that is their choice. Their brains seem to work better with pen and paper. As I said, though, it is very sad that they are so out of touch. Do they not have young friends or children or grand children? What about their clerks? Don't they see what these younger people are doing? So, so weird. And, I do not think its their age. There are PLENTY of elderly people who can run rings around younger people when it comes to technology.

[poster1122]

07:12 PM on 04/22/2010

Are you sure that YOU know the difference between a modern page and an email?

They are not as different as you might think. Pagers, particularly text pagers, are actually still in common use. The difference between them and an email you might send from your blackberry can be nothing more than that they use a different communications network.

Pagers these days are typically used in critical communications scenarios where you cannot rely on proper cell phone coverage. All cell networks have dead spots, and pagers of this type use standard or reserved radio frequencies with much greater range. You'll see devices like these used at remote industrial sites (oil wells, windmills, etc) where there's no cell tower for miles. They'll send out telemetric data in bursts (sometimes very large bursts) every once in a while to some substation or home base.

Depending on the pager network, the information being transmitted can be virtually identical to the way email is handled (because, really, why reinvent the wheel?). Copies can be stored on intermediate servers before they're passed along. The data itself is typically digitalized, can be logged, backed up, restored, just like an email. There's usually a header that says who the author was, when it was first transmitted, who the intended recipient is.

The distinction between a text page and an email is not as clear cut these days as you may believe.

[think-it-over]

02:27 AM on 04/23/2010

According to news stories there was a clear *written* policy that warns employees that they have no guarantee of privacy in using (at least) some forms of electronic communication. One of the reports I've seen says the policy refers to internet usage and email, but doesn't specifically refer to pagers. Given a supervisor's promise from a that *may* be at odds with the written policy it's necessary to determine if the plaintiff had a reasonable expectation of privacy for the text messages when he should have known that emails were not private.

As poster1122 points out, the "difference" between emails and texts is largely a matter of perspective and behind the scenes technology. Email has evolved, but originally it was simple text messages delivered electronically from one device to another, through a connecting network. I'd say that same phrasing also gives a basic description of simple texts delivered via a pager. Texting has also evolved, and now shares many features and characteristics with email. If the two are largely similar, expecting privacy for one when the other is specifically exempted from privacy is a mistake on the part of the plaintiff. I see no relevance to most of the underlying technology, but the degree of difference would be important to determine how reasonable it is to have expected privacy for the texts. I believe that is what Roberts was asking about.

[flormail]

01:31 PM on 04/22/2010

Hasn't case law, over and over again, basically found that employees have no free speech rights? The guy at Geico just found that out!! Big time!

[JTS313]

11:48 AM on 04/22/2010

Whatever the context of their questions, the assumption that the Justices are tech-savvy is a dangerous one. Age alone disqualifies half of them from having a clear understanding of interpersonal communications in the digital age. But understand it they must, because this will not be the last First Amendment case to flummox the digitally illiterate in the judiciary.

Also, and this may be somewhat ad hominem, I build web sites for a lot of lawyers. And as a professional group they are certainly more tech-challenged than most. I don't know why this is, but it's jaw dropping at times. I wouldn't suspect things to be any different at the highest court than they are in the lower.

Just sayin'.

[SteelTrapMind]

10:13 AM on 04/22/2010

Article fails to identify WHICH 'Ontario' this is; my initial reaction to the lede was that this was a Canadian case. Apparently, it's in California, for others wondering.

Finally, using taxpayer dollars to get laid is a no-no, end of story.

[JTS313]

11:50 AM on 04/22/2010

Really? Why would the Supreme Court of the United States be hearing a Canadian case?

[Loni Wolf]

02:39 PM on 04/22/2010

Of course, the texts are a "no-no" It's more complex than that. If you Google the case, , it's about WRITTEN assurance by the Lt. that texts in excess of 25,000 characters a month, as long as people paid the bill would be treated as PRIVATE & NOT REVIEWED by the Dep't. This created an expectation of privacy and an exception to the stated policy.
They then changed their minds without prior notice -either verbal or written: From the case:

After a few months the lieutenant got tired of being what he called "a bill collector," & the police chief decided the department should review the messages of the highest users to see if the job required freer message capacity.

The department asked the pager service to provide transcripts, and a review showed the biggest texter, Sgt. Jeff Quon, had exchanged hundreds of sexually explicit messages with his estranged wife, his girlfriend and a fellow SWAT officer.


Quon paid for those messages, but he was subsequently reprimanded for using the pager for personal purposes on the job, and for using obscene language on the pager -- a violation of department rules.

A federal appeals court ruled that the department had violated the texters' reasonable expectation of privacy because a supervisor had led the officers to believe that they could use their pagers privately, for personal use.
Personally, with schools being shut down & essential services being denied, I have to wonder if this is the best use of taxpayer money

[Acharn]

01:00 AM on 04/24/2010

Well, when you figure Guantanamo was built and staffed for eight years, so far, just so that George W. Bush wouldn't have to admit his subordinates had made a mistake, purchasing live bodies instead of guilty people, it's probably not the worst waste we have to live with.

[enlightened45]

09:25 AM on 04/22/2010

Another question that begs to be answered is the timing of this more than excessive "personal" sexting. Were these messages sent during on duty time for the police officer? If so this is another serious problem for him to justify in addition to using government property for personal use. In my view he has two serious charges to answer, not just one......

[arimoore]

09:12 AM on 04/22/2010

Can't we make them take a class or something? Seriously, I think our Supreme Court needs to know what email is.

[TommyMcCarthy]

09:53 AM on 04/22/2010

That could definitely come up at some point eh?

Of course, Justice Thomas could be excused from attending.

He thinks "stare decisis" is Latin for:..."whatever Scalia says"

heh
TM

[ecrichert12]

10:04 PM on 05/21/2010

Did you even read the article? He was asking what the legal difference would have been between
doing the same thing on a pager and an email.

I dont blame you though, we can thank huffpo for another misleading headling, nice work!

[LostRiverLedger]

06:25 AM on 04/22/2010

Sadly, the Constitution does not set any qualifications for service as a Justice, the President may nominate anyone to serve.

[flormail]

01:29 PM on 04/22/2010

Can you imagine the arguments over the "new" litmus test? Abortion, emminent domain, orgininalist vs modernist, Mac vs. IBM? Would we need to add Gates and Jobs to the vetting committees?

[LostRiverLedger]

02:32 PM on 04/22/2010

I'm not sure what the solution would be, but I think the article speaks to the need for persons who are a little more well rounded and with their feet planted in both the real world and the realm of constitutional law. Those with judicial/philosophical myopia need not apply, or be considered. we have too much that on the court already.

[melton244]

03:42 AM on 04/22/2010

Having the SCOTUS trying to make decisions about something they know about is beyond comprehension.

[darthmaul]

12:52 AM on 04/22/2010

I'm surprised that the Court offered to hear the case. Since many of them are constitutional originalists, I'm surprised that they just don't say The Constitution doesn't say anything about texting, and besides the founders didn't have cell phones.

[thole489]

12:51 AM on 04/22/2010

I think that a knowledge of 21st century technology should be a criterion for the next SCOTUS appointment.

[melton244]

03:44 AM on 04/22/2010

so maybe a 10 year old would have alot better understanding than they old fa.rts.

[Ironhelix]

11:04 PM on 04/21/2010

The headline "sounds" funny but the question is legitimate. The Justices want to know if the text capable pager is a one-to-one transmission or if there is a service provider in the middle that captures the pager texts. Therefore, the people in question could not expect the pager messages to be private. Also, if they are using city-issued equipment, data that pases over the devices belongs to the city. Provided the city can obtain a copy of the messages.

With respect to text messages and email, your text messages are not sent directly to you. The carrier has a copy. So if there was a legal issue i.e sexting, what you sent could be used against you in a court of law. The same for email. If you are using a company issued computer and email address, that information belongs to the company. Even internet beased email is backed up, so what you say there isn't necessisarily private. Therefore, the Justices question was valid.

[DaveKernen]

11:22 PM on 04/21/2010

How can you say their question is valid? Virtually all electronic communication goes through a service provider.
Even your over-explained explanation states that.
The employees had no valid reason to think otherwise. Maybe they didn't know, but that is no excuse for believing it was one-to-one private conversations.

[flormail]

01:26 PM on 04/22/2010

The point is, as evidenced by the justices' questions, is that many people are unaware that their private convos are actually not private. Many people, even tech savvy people, just assume what's sent via email/text is private. How many people do you think were surprised with the revelations of all these big sexting scandals at how easy it is to gain access to those texts? I bet Tiger Woods was plenty surprised.

[Ironhelix]

03:30 PM on 04/22/2010

" Maybe they didn't know, but that is no excuse for believing it was one-to-one private conversations"

Hence the reason the case has reached the Supreme Court, since the in fact, DID think their pager texts were private and sued for invasion of their privacy. So again, SCOTUS's question is valid from a LEGAL perspective.

[Loni Wolf]

10:30 PM on 04/21/2010

Don't count on this Supreme Court to show Supreme intelligence.... when they don't know a pager from a cell phone from a printer! (and the proverbial hole in the ground) Being the psychic I am I'll tell you what the "Roberts" (aka Scalia) court will find : that the equipment used was not the personal property of the plaintiffs & that they had no reasonable expectation of privacy for those messages. The terms that apply to any other company issued technology, ie, computers, would apply to these devices as well.
They will use COMPUTER E-MAIL case law as precedent, not recognizing the difference in the technology being wireless and the difference thereof . and render their decision based on the fact they were using public (corporate) property to conduct personal affairs. (Associated Press vs Canterbury WVa State Supreme Court 2008),, (Smythvs Pillsbury 6th circuit court 2006,.( upheld on appeal.)
The troglodytes will win this one, I'm afraid, as anything involving the rights on business (in this case local government) to trample on worker privacy is A-OK with these Federalist Society throwbacks who still seem to long for the 18th century.

[floodberg]

10:35 PM on 04/21/2010

Obviously you're not a lawyer; the transmission mode is not particularly relevant in this case. Since the 'pager' was provided by an employer for employee use in the business of law enforcement, and all defendants were warned of personal use, it's not relevant.

[Loni Wolf]

10:56 PM on 04/21/2010

then why did the lower courts uphold the plaintiffs' case based on the fact that the method of communication was wireless airspace ....and NOT owned by the defendant? Aslo please note this in "ontario vs /Quon: "But the lieutenant later told his subordinates that as long as they paid for any personal messages beyond the 25,000-character limit per month, the department would consider the messages private and would not review them." THAT sounds like an exception to the policy to me. They did NOT notify personnel of any changes in this policy as would be expected if it were to be changed, modified or cancelled. THAT is the essence of the case. I would read the original ruling if I were you.

[DaveKernen]

11:34 PM on 04/21/2010

If the court rules as you predict, then they will have ruled correctly. And being wireless vs wired makes no difference.

Not sure what you mean by "not recognizing the difference in the technology being wireless and the difference thereof..." My texts are "wireless" and my emails are "wireless." Wireless being only a part of the actual transmission of data. At some point along the way, virtually all "wireless" is in fact not wireless end to end - with few exceptions, of which email and texts are not.

[Loni Wolf]

02:28 PM on 04/22/2010

what I meant & what the lower court might have meant is ownership of the airspace. The Lt. originally said in IN WRITING "that texts in inexcess of the 25,000 characters per month ,as long as people paid the bill would be considered private & would NOT be reviewed" .THAT creates an expectation of privacy & an exception to the stated policy
then without ANY notice , per Quon vs. Ontario :
"After a few months though, the lieutenant got tired of being what he called "a bill collector," and the police chief decided the department should review the messages of the highest users to see if the job required freer message capacity.

The department then asked the pager service to provide transcripts, and a review showed that the biggest texter, Sgt. Jeff Quon, had exchanged hundreds of sexually explicit messages with his estranged wife, his girlfriend and a fellow SWAT officer.


Quon paid for those messages, but he was subsequently reprimanded for using the pager for personal purposes on the job, and for using obscene language on the pager -- a violation of department rules.

After that, Quon and three people with whom he had exchanged e-mails sued the department for violating their privacy.

A federal appeals court ruled that the department had violated the texters' reasonable expectation of privacy because a supervisor had led the officers to believe that they could use their pagers privately, for personal use.
cases that get to SCOTUS are a bit messier than

[DeathStare]

09:18 PM on 04/21/2010

I have so much confidence in the Supreme Court because in the next 100 years they will know the difference between email and a pager, but, alas, we will have moved on.

[valhalladad]

08:14 AM on 04/22/2010

Agreed. Now that they have differentiated between clay tablets and papyrus, they are well on their way.

[GoDogGo]

07:49 PM on 04/21/2010

Scalia's questions in particular are astonishing in their naivete and fundamental ig/norance of technology. Really, this is disturbing.

Bottom line: Don't consider a company phone or computer a "perk." Since what you do with them is subject to your employer's policies (and whims), they do NOT replace personal computers and phones we all use to lead our lives.

[KeepMeLearning]

05:23 PM on 04/21/2010

@ Realityism:

"While the City [of Ontario] did not have a policy on point with regards to the pagers issued to the officers, the City did have a general “Computer Usage, Internet and E-mail Policy” applicable to all employees. The policy stated that “[t]he use of City-owned computers and all associated equipment, software, programs, networks, Internet, e-mail and other systems operating on these computers is limited to City of Ontario related business. The use of these tools for personal benefit is a significant violation of City of Ontario Policy.” The Policy also provided:

C. Access to all sites on the Internet is recorded and will be periodically reviewed by the City. The City of Ontario reserves the right to monitor and log all network activity including e-mail and Internet use, with or without notice. Users should have no expectation of privacy or confidentiality when using these resources.

D. Access to the Internet and the e-mail system is not confidential; and information produced either in hard copy or in electronic form is considered City property. As such, these systems should not be used for personal or confidential communications. Deletion of e-mail or other electronic information may not fully delete the information from the system.

E. The use of inappropriate, derogatory, obscene, suggestive, defamatory, or harassing language in the e-mail system will not be tolerated."

-----------

You're still new here, Realityism.

[DRaymond]

06:58 PM on 04/21/2010

But now you may see the reason for some of the 'dumb' questions by the justices. The policy talks about e-mail and internet use and network activity. So that is why to ask about the difference between e-mail and pager. Also although the policy mentions network activity the SMS pages go out over cellular provider's infrastructure, not the city's network, and never arrive at the e-mail servers. So it really could be that the city's policy regarding SMS text messaging over city provided cell phones is nonexistent. And thus the general presumption of private conversations, that they are private, carries.

[Elise Ava]

01:59 AM on 04/22/2010

I think the point was that technical questions, even of a very basic nature, are incredibly common, and the fact that the justices asked questions in order to discern how different devices function is a good sign, not a bad one. All we see is a few phrases taken out of context, yet even then, can you explain to me the technical difference between how an email is sent/intercepted and how a pager sends messages or is intercepted? How many people do you think truly know the difference?
Details are often the crux of the court case; asking questions is not a sign of stupidity.

Your policy quoted above demonstrates this well, as DRaymond states - the computer policy in place may not apply in this case, as pagers are not email or computer related.