Orin Kerr writes:
On Monday, April 19, the Supreme Court will hear oral argument in this Term’s only significant Fourth Amendment case, City of Ontario v. Quon. Quon considers whether a city violated the Fourth Amendment by obtaining copies of stored text messages sent over a city-provided text pager used by a city employee. In an earlier post, I explained that the Petitioner’s merits brief made the stakes of Quon a lot lower than some had expected: The brief was drafted narrowly to avoid the question of whether the Fourth Amendment applies to text messages generally, and instead focuses specifically on how much notice is required for government employees to waive their rights.
I’ve now had a chance to look through the rest of the briefs in Quon, and I think the really interesting and important issue in the case is one that hasn’t received much attention before. While in the past I have focused on whether the government access violated the rights of the government employees who were assigned the pagers (here, Jeff Quon), I now think that the really juicy questions in the case involve whether the access violated the rights of the individuals with whom those employees were texting (here, Jerilyn Quon, April Florio and Steve Trujillo).
That is, the really key question isn’t whether the government access violated the rights of the government employee who had received notice; Rather, it was whether the government access violated the rights of the folks on the other end of the communications. In this post, I want to explain why this is a tricky problem and what I think the Court should do with it.
Read more on The Volokh Conspiracy.