SCOTUS Dips into Technology with Quon

April 26, 2010 - By Applied Discovery
For those of us who practice at the intersection of law and technology, the transcript of the Supreme Court’s oral argument in City of Ontario v. Quon serves as a reminder that it is a very small segment of the legal profession that is fully versed in how data is created, transmitted, stored, and manipulated.  Watching the brethren attempting to find a meaningful privacy distinction between messages stored onsite and messages stored on a remote server is baffling -wait until they hear about cloud computing. 

First, you think, “the Justices have law clerks who could advise them on the mechanics of messaging and storage” – but then it is unlikely the clerks have any better understanding how data is created, managed, stored and retrieved than the Justices.  Such knowledge certainly would not be derived from current law school curriculums.  It is also unlikely that any of the legal minds evaluating the reasonableness of privacy expectations in Quon have a working knowledge of the evolution of internet usage and electronic communication policies governing privacy expectations in organizations.

Consider the interface between an organization’s compliance obligations and individual privacy expectations their employees. In one example raised during oral argument, it was posited that the City of Ontario may be required to access text messages to examine actions taken during a SWAT response.  We’ve commented previously about the current failure to proactively manage ESI to support the myriad compliance obligations of corporate America.  This is evidenced in every breaking story on government and corporate transgressions; from Toyota’s suppression of customer complaints, to the email trail that emerged last week in hearings regarding investment rating agencies and undue pressure from Wall Street. Organizations are looking to take the tools developed for electronic discovery and apply them to compliance monitoring (SOX, FCPA, et al).  However, the Supreme Court may opine in Quon that employees have a reasonable expectation of privacy in their electronic communications that would undermine the ability of organizations to monitor regulatory and policy compliance.

The Supreme Court may be ill equipped to deal with the nuances of law and technology in the context of organizations, despite the legal scholarship of the Justices. The use of Court appointed neutral experts could enhance jurisprudence in future technology laden cases.  In the Quon deliberations by the Court, we hope that amicus briefs and other resources adequately address the lack of familiarity with ESI evidenced by the Court during oral argument.

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