More Detail on Quan Case

My colleague, Martha Zackin, has published a more extensive discussion of the issues before the U.S. Supreme Court in the Quan case --

ELB Law Information: Supreme Court to Hear Case re Employer's Access to Employee's Text Messages

Supreme Court will review some issues in Quon Case, denied review to other issues

Some additional information on yesterday's post regarding the Supreme Court's decision to hear the Quon case. The high Court agreed to hear some, but not all of the issues presented by the Ninth Circuit decision in the case.

The Court will consider whether a police sergeant assigned to a SWAT team had a reasonable expectation of privacy under the Fourth Amendment in text messages transmitted on a department-issued pager and stored by an outside service providerk even in the face of the City of Ontario's "general practice" of non-monitoring of such communications. The Court denied review (known as "certiorari") to questions of whether the surrender to the city in the first instance by Arch Wireless (the service provider) of those messages violated the Stored Communications Act.

The questions for review are limited, then, to three:

• Does a SWAT team member have a reasonable expectation of privacy in text
messages transmitted on his SWAT pager, when the police department has an
official no-privacy policy but a non-policymaking lieutenant announced an
informal policy of allowing some personal use of pagers?

• Did the Ninth Circuit contravene Fourth Amendment precedents and create
circuit conflict by analyzing whether the police department could have used
'less intrusive methods' of reviewing text messages transmitted by the SWAT
team member on his SWAT pager?

• Do individuals who send text messages to a SWAT team member's SWAT pager
have a reasonable expectation that their messages will be free from review by
the recipient's government employer?

Breaking News - SCOTUS

Reuters reports that the U.S. Supreme Court this morning refused to hear an appeal requested by two companies that want a New Hampshire prescription privacy law overturned. According to the article, the high court rejected without comment the request of Verispan and IMS Health, who argued that a law prohibiting companies from using physicians' prescribing records to boost drug sales violates their First Amendment rights to free speech. The Supreme Court's refusal means a 1st U.S. Circuit Court of Appeals decision to uphold the law stands. Last week, the companies asked the 2nd U.S. Circuit Court of Appeals to block implementation of a similar law in Vermont.   For further information about the New Hampshire and Vermont laws, see our advisories.