FRIDAY, JUNE 18, 2010
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Supreme Court court from A1
of company computers and cell- phones, the court was reluctant to draw clear lines between what is private and what is not. “Prudence counsels caution,”
Justice Anthony M. Kennedy wrote, arguing that the court should not use the case of an offi- cer who sends numerous text messages to “establish far-reach- ing premises that define the exis- tence, and extent, of privacy ex- pectations” of workers using com- pany equipment. Quon’s case may sound familiar
to many workers. Even though the department told him and his co- workers that they should not ex- pect privacy when using their pa- gers, they were also told that per- sonal use would be tolerated to a certain degree. If he exceeded the monthly allotment of texts, he was told, he would have to pay the difference. He did go over the allowed number, but his superiors tired of collecting the fees and wondered whether the plan was too limited. The police chief ordered the rec- ords from the company that pro- vided the texting service. After removing the texts Quon sent when he was off-duty, his bosses found that the vast major- ity of his texts were personal — 400 of 456 one month. According to Kennedy’s opinion, he was “al- legedly disciplined.” Quon sued, saying the search
violated the Fourth Amendment protections against unreasonable searches for him and those who texted him. A district judge and the U.S.
Court of Appeals for the 9th Cir- cuit agreed with him.
But the justices said Quon should not have assumed that his text messages “were in all circum- stances immune from scrutiny.” Kennedy said the department’s search was reasonable and, by eliminating those messages he sent while off-duty, not intrusive. The justices said that technol-
ogy may be changing faster than the courts can accommodate. Kennedy noted that in the
1960s, “the court relied on its own knowledge and experience to con- clude that there is a reasonable expectation of privacy in a tele- phone booth. . . . It is not so clear that courts at present are on so sure a ground.” He noted that some employers want workers to be constantly equipped with the latest technol- ogy to make them more efficient, and the bosses accept that the de- vices will be used for personal communication. “Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or
Disclosure Act in jeopardy after NRA deal
by Dan Eggen One of President Obama’s top
legislative priorities is in serious doubt after top House Democrats’ attempt to satisfy the National Ri- fle Association backfired badly. Top Democrats abandoned plans for a Friday vote in the House on the legislation, known as the Disclose Act, after liberal groups and members of the Con- gressional Black Caucus rose up against the deal with the NRA. A lobbying blitz by the U.S. Cham- ber of Commerce and other busi- ness groups also undermined support for the legislation, aides said. The bill would require corpora- tions, unions and nonprofit groups to disclose their top five donors if they participate in polit- ical activity and to agree to other disclosures in connection with ex- penditures prior to elections. The NRA had threatened to muster its formidable lobbying power against the legislation un- less it was exempted from key do- nor disclosure requirements. Af- ter Rep. Chris Van Hollen (D-Md.) unveiled the resulting compro- mise, gun-control groups, envi- ronmental organizations and oth- er linchpins of the liberal Demo- cratic base voiced outrage with the deal. Van Hollen attempted to bridge
differences Thursday by expand- ing the number of potential groups that would be exempted from disclosure requirements, from those with more than 1 mil- lion members to those with more than 500,000.
But opponents appeared confi- dent that the measure was on the ropes. Bruce Josten, the cham- ber’s chief lobbyist, said Thursday that “groups on both sides have strong objections to this bill.”
eggend@washpost.com
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necessary instruments for self- expression, even self-identifica- tion,” he wrote. “That might strengthen the case for an expec- tation of privacy.”
On the other hand, he said, cell- phones and similar devices have become cheap enough that em- ployees should consider buying their own. Justice Antonin Scalia agreed with the court’s conclusion in the case, but found Kennedy’s hand-
wringing opinion “exaggerated.” “The Court’s implication that where electronic privacy is con- cerned we should decide less than we otherwise would . . . or that we should hedge our bets by concoct- ing case-specific standards or is- suing opaque opinions is in my view indefensible,” Scalia wrote. “The-times-they-are-a-changin’ is a feeble excuse for disregard of duty.” Joshua Dressler, an Ohio State
University law professor, said the court decided wisely “to punt,” and not to “make broad an- nouncements regarding our rights in this new world in which we live.”
At the same time, lawyers who specialize in workplace issues said the court’s decision does de- fine some broad parameters for employers and workers. Christopher A. Parlo, a New York lawyer, said employers
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should take from it that workers have some expectation of privacy in the work context, but that clear policies are needed and employ- ers can conduct reviews of docu- ments and communications if there is a work-related reason. But he also said it may be good
that the court did not try to be more specific. “It was very wise of the court not to delve too deeply into a world of technology that they ad-
A11 Justices: Employers can monitor cellphone, computer conversations
mitted at oral argument was a bit foreign to them,” Parlo said in a statement. “Leaving it to lower courts across the country to shape the law in this area will allow a broad- er cross-section of the population, particularly with respect to age, to weigh in on these important is- sues.” The case is City of Ontario v.
Quon.
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