City of Ontario v. Quon – Oral Argument – April 19, 2010

Media for City of Ontario v. Quon

Audio Transcription for Opinion Announcement – June 17, 2010 in City of Ontario v. Quon

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John G. Roberts, Jr.:

We will hear argument next in Case 08-1332, the City of Ontario v. Quon.

Mr. Richland.

Kent L. Richland:

Mr. Chief Justice, and may it please the Court: Under the less restrictive constitutional standards applied when government acts as employer, as opposed to sovereign, there was no Fourth Amendment violation here.

First, Ontario Police Sergeant Jeff Quon had no reasonable expectation of privacy vis-à-vis the Ontario Police Department in text messages on his department-issued pager in light of the operational realities of his workplace, which included the explicit no privacy in text messages policy.

John G. Roberts, Jr.:

The written policy?

[Laughter]

The whole — the argument here, of course, is that that was modified by the instructions he got from the lieutenant.

Do we follow the written policy or the policy they allegedly enforced in practice?

Kent L. Richland:

That is the argument, Mr. Chief Justice.

But, in fact, there was no inconsistency between the no privacy in text messages aspect of the written policy and the oral information he was given.

First of all, the written policy itself was broad enough to cover text messages.

It stated, for example, at Appendix 152, that it applied to city-owned computers and all associated equipment.

And again at 152:

“City-owned computer equipment, computer peripheral, city networks, the Internet, e-mail, or other city-related computer services. “

And, finally, the agreement to the policy was that it applied — this is at Appendix 156 — to city-owned computers and related equipment.

So certainly the written policy itself was broad enough to cover text messaging pagers, but in addition to that, nothing in the oral statements made by Lieutenant Duke undermined the no-privacy aspect of the written policy.

John G. Roberts, Jr.:

Well, we are dealing with Mr. Quon’s reasonable expectations, right?

Kent L. Richland:

Yes, yes.

John G. Roberts, Jr.:

And even with the written policy, he has the instructions — everybody agrees — you can use this pager for private communications.

Kent L. Richland:

That’s correct.

John G. Roberts, Jr.:

We’re not going to audit them.

That’s what he said.

He has to pay for them.

Right?

Now, most things, if you’re paying for them, they’re yours.

And this — it particularly covered messages off-duty.

Now, can’t you sort of put all those together and say that it would be reasonable for him to assume that private messages were his business?

They said he can do it.

They said, you’ve got to pay for it.

He used it off duty.

John G. Roberts, Jr.:

They said they’re not going to audit it.

Kent L. Richland:

Not when he was told at the same time that these text messages were considered e-mail and could be audited, and that they were considered public records and could be audited at any time; that is, it has to do with a different aspect of what the policy — the oral policy–

Ruth Bader Ginsburg:

In addition to — that was said at the meeting — and Lieutenant Duke, who was the same one who later says: I’m not going to monitor as long as you pay the difference.

There was the statement at the meeting by that same person.

Wasn’t there something in writing by the police chief to follow up after that meeting?

Kent L. Richland:

–Yes, there was, Justice Ginsburg.

There was a memo that was sent that memorialized the statements at the meeting, that specifically stated that the text messages were treated as e-mail under the written policy.

John G. Roberts, Jr.:

Let me ask you–

Sonia Sotomayor:

Counsel–

John G. Roberts, Jr.:

–Let me ask you to put the written policy aside.

Hypothetical case: There’s no written policy.

Would he have a reasonable expectation in the privacy of his personal e-mail, text messages, in that case?

Kent L. Richland:

Not–

John G. Roberts, Jr.:

In other words, all we know is the list that I went through earlier.

Kent L. Richland:

–Yes.

Yes, Mr. Chief Justice.

Assuming all the other factors in this case were present–

John G. Roberts, Jr.:

Yes.

Kent L. Richland:

–That is, he is using his department-issued pager; he is a police officer and indeed a member of the high-profile SWAT team of the police department.

He should be aware just by virtue of that fact that there is going to be litigation involving incidents that the SWAT team gets involved in where there will be requests for the communications that are made on that official department-issued pager.

And, in addition, he should be aware of the fact — and this is something that the dissenters to denial of en banc said below.

He should be aware that there may be inquiries from boards of the police to determine whether the conduct of the police in a particular incident is appropriate.

Antonin Scalia:

Mr. Richland, a little earlier you referred us to page 152 and 156 of–

Kent L. Richland:

Of the appendix to the petition.

Antonin Scalia:

–Oh, the appendix to the petition.

Kent L. Richland:

Yes, and that’s the policy.

That is the written policy, Justice Scalia.

I’m sorry for the confusion.

John G. Roberts, Jr.:

Well, that’s the written policy.

Kent L. Richland:

That is the written policy, and the–

John G. Roberts, Jr.:

But the policy itself, from the point of view of Officer Quon, is a little bit more complicated than that.

Kent L. Richland:

–Well, of course, what the — what Officer Quon’s point of view is must also be tempered by what we are reasonably going to accept as a society of his understanding of the circumstances.

Sonia Sotomayor:

–Counsel–

John G. Roberts, Jr.:

You would agree, I think, that if the SCA, the Stored Communications Act–

Kent L. Richland:

Yes.

John G. Roberts, Jr.:

–If that made it illegal to disclose these e-mails, then he would certainly be correct that he has a reasonable expectation of privacy; isn’t that right?

Kent L. Richland:

No, Mr. Chief Justice.

We would not agree with that.

John G. Roberts, Jr.:

It’s not reasonable to assume that people are going to follow the law?

Kent L. Richland:

Well, for several reasons.

Number one, this Court has repeatedly stated that the mere fact that something is contrary to the law does not in itself permit a reasonable expectation of privacy.

Just two terms ago, in Virginia v. Moore, this Court said precisely that.

And of course it said it earlier in California v. Greenwood, and in a number of other cases — Oliver v. United States.

Because the effect of that, of course, would mean that we would be constitutionalizing every positive law that might be enacted by a State or the Federal legislature.

Anthony M. Kennedy:

Well, on that point, do we take it as the law of the case or as a given that it was illegal for I think Arch to turn over the transcripts to the police department?

What do we do with that part of the case?

Kent L. Richland:

Justice Kennedy, I don’t believe it is law of the case that is binding on this Court, since this Court is a higher court.

Although it is true that this Court denied certiorari on that issue, I don’t believe it is bound by the Ninth Circuit determination of that, and in fact it is our contention that that was incorrectly decided.

Anthony M. Kennedy:

On remand — has there been a final judgment issued as to Arch, or is that just being held–

Kent L. Richland:

I don’t believe so, Justice Kennedy.

I believe that everything has been stayed pending the determination by this Court.

Sonia Sotomayor:

–Counsel, let’s assume that in this police department, everyone knew, the supervisors and everyone else, that the police department people spoke to their girlfriends at night.

Kent L. Richland:

Yes, Justice Sotomayor.

Sonia Sotomayor:

And one of the chiefs, out of salacious interest, decides: I’m going to just go in and get those texts, those messages, because I just have a prurient interest.

Does that officer have any expectation of privacy that his boss won’t just listen in out of prurient interest?

Kent L. Richland:

Justice Sotomayor, as to the first aspect, the question of reasonable expectation of privacy, the motive should have no impact.

The motive of looking should have no impact.

The question of reasonable expectation of privacy must be analyzed according to the relationship between the officer and his — and his employer.

Sonia Sotomayor:

But if in fact — and whether we agree with this conclusion or not, we accept the lower court’s views that there was an expectation that the chiefs were not going to read these things, some expectation of privacy–

Kent L. Richland:

Yes.

Sonia Sotomayor:

–the limits of it have to be limited for all of the reasons you’ve said, doesn’t this case begin and end on whether or not what the jury found is reasonable grounds for what the city did?

Kent L. Richland:

I think that what this case begins and ends with, if we assume that there was a reasonable expectation of privacy, is under the plurality opinion in O’Connor: Whether the search itself was reasonable.

And the jury did, of course, make a determination as to the purpose of the search.

Antonin Scalia:

I guess we don’t decide our — our Fourth Amendment privacy cases on the basis of whether there — there was an absolute guarantee of privacy from everybody.

I think — I think those cases say that if you think it can be made public by anybody, you don’t — you don’t really have a right of privacy.

So when the — when the filthy-minded police chief listens in, it’s a very bad thing, but it’s not — it’s not offending your right of privacy.

You expected somebody else could listen in, if not him.

Kent L. Richland:

I think that’s correct, Justice Scalia.

Antonin Scalia:

I think it is.

Kent L. Richland:

And I think the reason why you must have the two-step analysis in a case of this sort — that is, first look at the question as to whether there’s a reasonable expectation of privacy, and then determine, if there was, whether the search was reasonable — is precisely for the reason that, without that, what we will have in every case is the claim that there was a salacious reason, that that was the reason.

And we’ll be litigating every one of those cases–

Ruth Bader Ginsburg:

Then, according to what you just said, the jury determination was superfluous.

If there was no reasonable expectation of privacy because the officers were told this is just — we treat this just like e-mails, it can be monitored, it can be made public, then there would be no reasonable expectation of privacy and there would be no question to go to the jury.

Kent L. Richland:

–That’s correct, Justice Ginsburg.

And it is our position that this should never have gone to the jury, that summary judgment should have been granted in favor of the Ontario Police Department.

Anthony M. Kennedy:

–So you have two arguments: One, that it’s — there’s no reasonable expectation of privacy; even if there were, that this was a reasonable search.

Kent L. Richland:

That’s correct.

Antonin Scalia:

Is reasonable expectation of privacy a judge question or a jury question?

Kent L. Richland:

Well, if there is a conflict in the facts, I presume the jury must resolve those — that factual conflict.

But in this case, I don’t believe there is a conflict in the facts, and, therefore, it is a judge question.

John G. Roberts, Jr.:

Did your client treat on-duty text messages different from off-duty text messages?

Kent L. Richland:

It did, once there was an initial determination made as to the–

John G. Roberts, Jr.:

Why did it do that?

Kent L. Richland:

–Excuse me.

I’m sorry.

John G. Roberts, Jr.:

Why did it treat them differently?

Under your theory, they’re all the same — no expectation of privacy.

Kent L. Richland:

It treated them differently out of — because there were two aspects to the case.

One aspect was the initial determination that Chief Sharp ordered to say: I just want to know, is our character limit efficacious here, or do we need to have a higher character limit?

And for that purpose, they needed to just look at all of them.

Kent L. Richland:

And they did; they looked at all of the text messages.

But then when they saw that some of them may have involved violations of department regulations, then it was sent to Internal Affairs, and they redacted the off-duty messages because they were–

Anthony M. Kennedy:

Is that something like the plain view argument?

In search and — search and–

Kent L. Richland:

–I suppose.

Anthony M. Kennedy:

–Well, I’m serious.

In other words, there is, under your view–

Kent L. Richland:

Yes.

Anthony M. Kennedy:

–legitimate grounds to look at the messages, and then once they see it, they don’t have to ignore it.

Kent L. Richland:

I think that’s correct, Justice Kennedy.

John G. Roberts, Jr.:

Well, why did — I’m sorry.

I still don’t understand.

It redacted them, right?

Kent L. Richland:

Redacted because the inquiry — the second stage of the inquiry in Internal Affairs–

John G. Roberts, Jr.:

Yes.

Kent L. Richland:

–was simply to determine how much time was being spent on duty sending personal messages.

John G. Roberts, Jr.:

Right.

Kent L. Richland:

So the Internal Affairs Department said: We don’t need to look at the off-duty messages.

We’re going to redact them.

Why get into all of that?

We don’t have to look.

The department was pretty scrupulous.

And I think that’s part of what makes the entire approach that they took to this reasonable.

It makes the search aspect of the case reasonable.

And I think it’s important, in that regard, to look at the nature–

Antonin Scalia:

Excuse me.

You said they did get to the off-duty text messaging later?

Kent L. Richland:

–No, it was the other way around.

They looked at the on-duty text messaging at the later stage, at the Internal Affairs stage.

But they looked at all of the text messages when the only purpose for the inquiry was to determine how many of the text messages in general are job-related and how many were personal?

Kent L. Richland:

Because the question was: Do we need to raise the character limit–

John G. Roberts, Jr.:

Well, you don’t have to look at the messages to determine that with respect to the off-duty messages, right?

Kent L. Richland:

–Well — well, you did, because of the fact, Mr. Chief Justice, that there were job-related communications even while there was off-duty.

These officers were SWAT team officers.

They were on duty, as Sergeant Quon said, 24/7.

That was one of the reasons why they had the text messaging pagers.

Samuel A. Alito, Jr.:

If someone wanted to send a message to one of these pagers, what sort of a device would you need?

Do you need to have another pager, or can you — could you send a message to one of these devices from some other type of device?

Kent L. Richland:

No, there were messages that were sent from various other devices.

Is the question whether that could be physically done, electronically done?

Because, yes, clearly that was–

Samuel A. Alito, Jr.:

Yes.

What other type of device could you use to send a message to one of these pagers?

Kent L. Richland:

–It — oh.

I’m not certain if it was something other than another text messaging pager.

It did appear that there were some e-mail entries in the transcripts themselves, which suggested that there might have been a way to communicate to them with e-mail, but that’s just — that’s all in the record that suggests that.

Antonin Scalia:

You know, if they were on duty 24/7, there weren’t any off-duty messages, were there?

[Laughter]

Kent L. Richland:

Well, I may have misspoke.

They were on call 24/7.

They were the SWAT team, and they had to respond to emergencies.

Ruth Bader Ginsburg:

If we take it that the Stored Communications Act does say that the provider may not give out the transcripts, if we take that as given, then how can the department lawfully use the transcripts?

Kent L. Richland:

Well, Justice Ginsburg, first of all, there was no — there is no current claim that anything that the department did with respect to the Stored Communications Act was unlawful.

So it may be that the other entity, Arch Wireless, violated the Stored Communications Act, but that would not preclude the department — which was, after all, the subscriber — from requesting to see what, in fact, the transcripts disclosed.

But in addition to that, there is also the fact that, as I said before, a reasonable expectation of privacy couldn’t be based simply on the fact that there was a statute, and particularly not a statute like the Stored Communications Act, because that’s a statute that’s extremely, extremely technical.

And there is a — one has to determine whether an entity was working either as an electronic communications service or a remote computing service, and so on.

Courts are all over the board on this.

As this Court noted in United States v. Payner, a complicated law like that simply cannot be the basis for a reasonable expectation of privacy.

And if I may reserve the rest of my time, thank you.

John G. Roberts, Jr.:

Certainly, counsel.

John G. Roberts, Jr.:

Mr. Katyal.

Neal Kumar Katyal:

Thank you, Mr. Chief Justice, and may it please the Court: Millions of employees today use technologies of their — of their employers under policies established by those employers.

When a government employer has a no-privacy policy in place that governs the use of those technologies, ad hoc statements by a non-policy member cannot create a reasonable expectation of privacy.

Put most simply, the computer help desk cannot supplant the chief’s desk.

That simple, clear rule should have decided this case.

Instead, the Ninth Circuit found that the 1999 policy applied to pagers, but then concluded that that 1999 policy was informally modified years later.

And that decision should be reversed.

It disregards this Court’s repeated holdings, including 2 years ago in the Chief Justice’s opinion in Engquist v. Oregon about the greater amount of leeway that the government has when it acts as an employer.

And it also is not consistent with the plurality opinion in O’Connor, which observed that when the government adopts a policy that its employees lack privacy, no reasonable expectation of privacy exists.

Anthony M. Kennedy:

Let me ask you this: Suppose the department asks for opinion of legal counsel whether or not transmittal of the transcripts by Arch to the department was a violation of the Act, and the counsel said: This was a violation of the Act; they had no right to send them to you.

Would the department then still have had a right to look at the transcripts?

Neal Kumar Katyal:

So the question is if the Stored Communications Act is violated?

Anthony M. Kennedy:

Yes.

Neal Kumar Katyal:

We don’t think the Stored Communications Act was–

Anthony M. Kennedy:

No, but — no, my hypothetical is that the — that there is a legal counsel’s opinion that this was in violation of the Act, and let’s say the district court said it is in violation of the Act.

Let’s say we say it’s in violation of the Act.

Is that the end of case?

The department cannot look at the transcripts?

Neal Kumar Katyal:

–Oh, absolutely not.

I mean, I think this Court has repeatedly said that — that various privacy laws don’t determine the scope of the Fourth Amendment.

I think it said so most clearly in California v. Greenwood.

And I think that’s for a very simple reason, that things like the Stored Communications Act, Justice Kennedy, the Electronic Communications Privacy Act, came about–

Anthony M. Kennedy:

Well, California v. Greenwood was a question of — of a Fourth Amendment standard that had to be nationwide.

So you say it’s the same — same thing here?

Neal Kumar Katyal:

–I — I do think it’s the same, and for this simple reason, that when you have a nationwide standard or a State standard, it’s to fill the gap, whatever isn’t necessarily protected by the Fourth Amendment.

And here–

Anthony M. Kennedy:

Well, but Greenwood was in the — in the context of the exclusionary rule in criminal proceedings.

I certainly think that States — at least we could make the reasonable argument that States can have different policies with respect to their employees, that have to be respected.

Neal Kumar Katyal:

–Absolutely, Justice Kennedy.

I don’t disagree with that.

Neal Kumar Katyal:

I think the only question is, if the — if I understand your question it’s, does a Federal statute about privacy somehow matter to the Fourth Amendment analysis about reasonable expectations of privacy?

And there our contention is, no; it’s precisely because Congress enacted the Stored Communications Act to fill gaps in Fourth Amendment law.

That — that’s why it’s enacted.

And for — for this Court to then use that very Act to be the template on which reasonable expectations of privacy may spring I think would be a very — it would be a novel proposition.

Nor should–

Samuel A. Alito, Jr.:

Well, that’s — that’s a little bit puzzling because there are — electronic communications are stored all over the place in — and there isn’t a history — these are — these are relatively new.

There isn’t a well-established understanding about what is private and what isn’t private.

It’s a little different from putting garbage out in front of your house, which has happened for a long time.

If — if statutes governing the privacy of that information don’t have any bearing on reasonable expectation of privacy under the Fourth Amendment, it’s some — I — I’m at something of a loss to figure out how to determine whether there is a reasonable expectation of privacy regarding any of those things.

Neal Kumar Katyal:

–Well, Justice Alito, I do think that the underlying premise of your question is one with which we entirely agree.

These are technologies that are rapidly in flux, in which we don’t have intuitive understandings the way we do about, say, trash and so on.

And it’s precisely for that reason I think the Court should be very careful to constitutionalize and generate Fourth Amendment rules in this area at the first instance.

To do so I think really does freeze into — into — into place something that the legislature can’t then fix, going to Justice Kennedy’s opinion in, for example, Murray v. Giarratano, in which he said that constitutionalizing in that area — constitutionalizing may pretermit legislative solutions.

Now, here the Stored Communications Act is not violated under any way, shape, or form.

The Stored Communications Act has two different provisions in it, one having to do with remote — remote computing services, RCSs.

That’s when an entity offers storage facilities.

And the other is for an electronic communications service.

That is essentially transmission of messages from point to point.

John G. Roberts, Jr.:

Your point that you made just a moment ago, that we don’t want to freeze into place the constitutional requirements with respect to new technology, I wonder if it cuts the other way.

We’re dealing with an amendment that looks to whether something is reasonable.

And I think it might be the better course to say that the Constitution applies, but we’re going to be more flexible in determining what’s reasonable because they are dealing with evolving technology.

Neal Kumar Katyal:

Well, I think that the — the best way — I think the most — the easiest way for the Court to resolve this is to simply say that when we are dealing with what is reasonable, we look to the policy.

And here there’s a policy by the employer, it says that computer-associated — computer-related equipment and others, there’s no expectation of privacy.

You have a person who is told that repeatedly.

John G. Roberts, Jr.:

Well, but that puts a lot of weight — I mean, there are some things where we don’t bind them.

You know, you get the usual parking garage thing that has got all this small print on the back.

We — we don’t say that you’re bound by that, because nobody reads it.

But in here, I just don’t know.

I just don’t know how you tell what’s reasonable — I suspect it might change with how old people are and how comfortable they are with the technology — when you have all these different — different factors.

You know, they’re told you can use it for private; you’ve got to pay for it.

John G. Roberts, Jr.:

I think if I pay for it, it’s mine, and it’s not the employer’s.

Neal Kumar Katyal:

Well, I think the clearest way, Mr. Chief Justice, to decide what is reasonable and what isn’t is actually the terms of the policy.

And it seems to me very little is more unreasonable than expecting a right to privacy after you’ve been told in a policy you have no privacy.

Antonin Scalia:

Suppose we find a right of privacy.

Is that the end of the case?

I mean, wouldn’t you also — in order to sustain this lawsuit, wouldn’t you also have to find that it was an unreasonable–

Neal Kumar Katyal:

Absolutely.

There are two arrows in the city’s quiver, and I think they’re right as to both of them.

But–

Antonin Scalia:

–What’s the government’s position on the unreasonableness of the search?

Neal Kumar Katyal:

–The government’s position is that the Ninth Circuit just from the get-go got the standard wrong by citing — by using a Schowengerdt test which was, was this — was this search the least restrictive alternative?

And we think this Court has repeatedly said that’s the wrong way of thinking about it, that that puts judges in the position of second-guessing searches on the ground, that they’re not really fully — fully equipped to do so.

So I do think that is a possible way to resolve this, Justice Scalia, but–

Antonin Scalia:

Maybe an easier way, huh?

Neal Kumar Katyal:

–Well, I don’t know that it’s easier, in the following sense: I think that thousands of employers across the country rely on these policies and millions of employees.

And the Ninth Circuit’s decision puts that reliance in some jeopardy, because it said that you can have an official policy and it can be taken back by what some ad hoc subordinate says.

And that is, I think, a very destructive notion to the idea of reliance on these policies and setting–

John G. Roberts, Jr.:

So, your — your position would require people basically to have two of these things with them, two whatever they are, text messager or the BlackBerries or whatever, right?

Because assuming they’re going to get personal things, you know, some emergency at home, they’re also going to get work things–

Neal Kumar Katyal:

–To the — under this policy, yes.

You might have an employer that sets a different policy and allows for some de minimis use and a zone of privacy in that use.

You can have a variety of different things.

But what I think would be dangerous is to have a blanket rule that constitutionalizes and says you always have reasonable expectations of privacy in this technology.

The result may be, Mr. Chief Justice, that employers then won’t give that technology at all to their employees and — and eliminate even that de minimis use.

Mr. Chief Justice, you had also asked before about the standpoint of Quon in — in evaluating the reasonableness of the search — of the search in his perspective of the policy.

We think that is the wrong way of looking at it.

Instead, we think the proper test is the written policy, what it says, and that is the simplest way, I think, to provided administrability to the lower courts.

They can simply say was this policy in existence, and not get into those questions of is it like a parking ticket, did I flip through it too quickly, did I understand that the policy and the like.

Sonia Sotomayor:

You want to — you want to — you want to undo O’Connor’s operational realities of the workplace and say the minute you issued a written policy that renders all searches okay, even if the operational realities are different?

Neal Kumar Katyal:

Not at all, Justice Sotomayor.

Neal Kumar Katyal:

I take it the language about operational realities in the workplace, what is right next to it is looking to whether or not there are regulations in place, and here a policy is a regulation.

And so–

Sonia Sotomayor:

You may have an argument that the nature of the policy here and all of the activities related to it don’t prove an operational reality of privacy, but I don’t know why — you want a flat rule that says once you have a written policy, there’ no expectation of privacy.

Neal Kumar Katyal:

–And I think that is — that is what O’Connor says with respect to the — as long as the policy is in place, that — that’s what O’Connor permits.

John G. Roberts, Jr.:

–Thank you, counsel.

Mr. Dammeier.

Dieter Dammeier:

Thank you, Mr. Chief Justice, and may it please the Court: I think an underlying fact that we might be skipping over is — is — and both the lower courts recognize this — that the computer policy that the department had didn’t apply to the pagers on its own.

It — it only came into play after Lieutenant Duke modified that policy and told people at the — at the meeting that was referred to earlier that the pagers are now going to be applying with — with this policy.

It — it–

Ruth Bader Ginsburg:

Why is — why is that so?

I mean, it did say associated equipment.

And — and if an employee is told now e-mails aren’t private, so we’re warning you, we can monitor them, wouldn’t such an employee expect the same thing to apply to the pager?

Dieter Dammeier:

–Well, the policy itself has two components to it.

One is, don’t use our equipment, all associated equipment for personal business.

The other part of that policy deals with the no privacy, and it informs the people there could be monitoring.

And specifically on the acknowledgment form of that policy, which is at Appendix 156 of the petition, it specifically says the city will periodically monitor e-mail, Internet use, and computer usage.

And — and, again, I think this is why the — both lower courts came to the conclusion that the computer policy on its own wasn’t in play until Lieutenant Duke announced that, hey, now the pagers are going — are going to be in play with this computer policy.

This is the same Lieutenant Duke–

Ruth Bader Ginsburg:

But my question is, an employee reads this policy and says, oh, my e-mails are going to be subject to being monitored–

Dieter Dammeier:

–Sure.

Ruth Bader Ginsburg:

–Wouldn’t that employee expect that the policy would carry over to pagers?

I mean, would — when you think of what’s the reason why they want to look at the e-mails, wouldn’t the same reason apply?

Dieter Dammeier:

Well, I’m sure the same reasons could apply, but the — the city is the one that writes the rules here.

The — if they want to make it clear on what it applies to, it certainly should be on them to write them clear so the employee understands.

John G. Roberts, Jr.:

Maybe — maybe everybody else knows this, but what is the difference between a pager and e-mail?

Dieter Dammeier:

Sure.

The e-mail, looking at the computer policy — that goes through the city’s computer, it goes through the city’s server, it goes through all the equipment that — that has — that the city can easily monitor.

Here the pagers are a separate device that goes home with you, that travels with you, that you can use on duty, off duty, and–

John G. Roberts, Jr.:

You can do that with e-mails.

Dieter Dammeier:

–Certainly, certainly.

Dieter Dammeier:

But in this — in this — in this instance with the pagers, it went through no city equipment; it went through Arch Wireless and then was transmitted to another — another person.

So, again, to Duke — Duke is the one that said: Hey, this — this comes into play.

But Lieutenant Duke is also the one that gave the privacy guarantee to the SWAT team members and said: As long as you pay the overages, we’re not going to look at your pagers; we’re not going to look at the messages.

So if — if you couple both of those modifications, both by the same lieutenant — and he wasn’t just some subordinate; he was the lieutenant in charge of the administrative bureau; he was the administrative bureau commander.

Ruth Bader Ginsburg:

I thought that he said — he was saying: But as far as billing is concerned, I’m not going to look at these; if you use more than 25,000 characters, you pay the extra, and that will be the end of it.

If you contest that, then I’ll look to see whether those in excess of 25,000 characters were for work purposes or private purposes.

And so he’s talking about the billing.

He hasn’t retracted what was said at the meeting about — that these text messages are subject to audit.

Dieter Dammeier:

This — this is what Sergeant Quon testified to, that he attributed to Lieutenant Duke: If you don’t want us to read it, pay the overage fee.

Stephen G. Breyer:

But what’s wrong with his deciding: I don’t like to do this anymore?

I don’t want to collect all this money; it’s too complicated; and so I don’t know how many of these messages are related to work and how many they are just mucking around prying into each other’s business.

Dieter Dammeier:

He can certainly–

Stephen G. Breyer:

So I would like to know, so therefore I’m going to look and see.

Now, what’s unreasonable about that?

Dieter Dammeier:

–Well, he certainly could say I don’t want to do this anymore, and he could–

Stephen G. Breyer:

Oh, no.

Dieter Dammeier:

–And he could tell everybody.

Stephen G. Breyer:

I’m saying what’s — the city owns the pager.

It’s a pager used for work.

They are giving a privilege to people if they want to use it off work.

It seems to be involving a big amount of collection, and so what he wants to do is he wants to see how much of this is being used for work and how much is of this not being used for work.

My question, which I just repeated, is why is that an unreasonable thing?

Dieter Dammeier:

I don’t think that request is unreasonable, Your Honor.

Stephen G. Breyer:

Fine.

And then if that’s not unreasonable, why is what went on here that was any different?

Dieter Dammeier:

Well, here the jury — the only fact that was determined by the jury was the reason for the search.

And that’s found at the appendix to the petition page 119.

This is the only finding that the jury made as to the purpose of the search: To determine the efficacy of the existing character limits to ensure that officers were not being required to pay for the work-related expenses.

Stephen G. Breyer:

How does that differ from what I just said?

Dieter Dammeier:

Well, it — it comes into play on — on the scope of the search.

Dieter Dammeier:

Again–

Stephen G. Breyer:

No, I understand.

I thought it’s just a more — a few more words to say just what I said.

That they wanted to look into this because they are tired about collecting so much money.

It’s the third time I’ve said the same thing; probably it’s my fault I’m not being clear.

But it looked as if they wanted to know how many are being sent for work purposes, how many for private purposes including prying into people’s business, which wasn’t too desirable, and — and — so that they could get the — the charges right.

Now, that sounds like what the jury said they were doing, too.

And my question was — I don’t see anything, quite honestly, unreasonable about that, where you’re the employer, where it’s a SWAT team, where — where — where you’re paying for this in the first place.

So the reason I ask it is I would like you clearly to explain what’s unreasonable about it.

Dieter Dammeier:

–The scope of the search was unreasonable.

Stephen G. Breyer:

That’s the conclusion.

Now, what’s your reason?

Dieter Dammeier:

Under — under — looking at O’Connor, you have to — you have to look to make sure that the search is not excessively intrusive.

Here, what they did was they took all the messages and started reading them.

Given the purpose, the limited purpose that was found by the jury for the search, they didn’t need to do that.

Stephen G. Breyer:

Well, explain that one to me.

Dieter Dammeier:

They–

Stephen G. Breyer:

Being naive about this, if I had a — like, 20, 30,000 characters in 1,800 messages and I wanted to know which are personal and which are work-related, a good way to get at least a good first cut would be to read them.

[Laughter]

Okay?

So I start off thinking that seems to be reasonable to me.

That’s what I would do.

Dieter Dammeier:

–Well, that’s certainly one–

Stephen G. Breyer:

So all right.

Now you tell me why that isn’t reasonable.

Dieter Dammeier:

–That’s one of the ways they could have done it.

They could have got — they could have got consent from the officers first to do it.

They could have had the officers themselves count the messages.

After all, the officers were the ones that were paying for the overages.

Stephen G. Breyer:

All right.

Stephen G. Breyer:

But the officers might say: I don’t want you to read these messages because they happen to be about the sexual activity of some of my coworkers and their wives and me, which happened to be the case here.

Dieter Dammeier:

Right.

Stephen G. Breyer:

So I guess if you had asked for consent, the officer would have said no.

[Laughter]

Now, he says, I still want to know.

I will be repeating it.

All right.

So what — that didn’t sound very practical.

What’s the other way?

Dieter Dammeier:

Well, they could have — they could have had the officers themselves count the messages.

Stephen G. Breyer:

Well, the officer is going to say, hey, these are all big — work-related.

I’ll tell you that.

I only had two.

Dieter Dammeier:

Well–

[Laughter]

Stephen G. Breyer:

Okay.

What’s a third way?

Dieter Dammeier:

Okay.

They — the lieutenant could have said, hey, we’re going to stop this practice that I started, and from this month forward make sure all you do is business-related.

No more–

Stephen G. Breyer:

That would have been rough on them.

Because you want to let them have a few; you need pizza when you’re out on duty.

You want to — there are–

Dieter Dammeier:

–The–

Stephen G. Breyer:

–Look, so far I listened to four things, and I’m just being naive about it.

I’ll read it more closely, but I don’t see why these four things are so obviously more reasonable than what they did.

Dieter Dammeier:

–They also — they could have had the officers redact the private messages and then given it — given it to the department.

Sonia Sotomayor:

But suppose that their application of what — how much was being spent on business-related, all of your suggestions about having the officer do things does nothing about their application.

Dieter Dammeier:

Well–

Sonia Sotomayor:

You’re — you’re relying on the very person you’re auditing to do the audit for you.

Sonia Sotomayor:

That doesn’t seem either practical or business-wise.

Dieter Dammeier:

–Well, other than my one sample of — example of saying, hey, let’s — let’s stop the personal use and we’re going to have a test month to determine exactly how many messages we need for our business-related purposes.

Sonia Sotomayor:

That goes back to — I don’t understand that.

You’re still relying on the person you’re auditing to say to you I’m only using it for business.

That — that’s just not logical.

Dieter Dammeier:

Well, but the — the sole purpose of the search was only to find out if officers were paying for business-related messages that they didn’t need to pay for.

Stephen G. Breyer:

But the question, in the Constitution, the word is “unreasonable”.

Is it a reasonable or unreasonable?

So the question — what I asked is not maybe you would have gotten a better result if you had hired Bain Associates and Bain would have done a 4-month study at a cost of $50,000.

But I could say a person who doesn’t want to hire Bain and who doesn’t want to rely on the unverified word of the officers who were using these for God knows what is not being unreasonable.

That’s the ultimate issue.

And that’s why I’m putting it to you to show me that what they did was unreasonable.

Dieter Dammeier:

I think it comes down from that perspective on the excessiveness of the search.

John G. Roberts, Jr.:

The only reason — the only reason the officer would not be accurate — I mean, I don’t understand why the redaction is such a bad idea.

He just says these are private.

And that allows — and then you could look at everything else.

You can see if he’s going too far because then everything else would be there.

But in terms of — the jury found this was not done to find out what was in the messages, so they don’t need to find out what’s in the messages.

That’s just a question.

He has to pay for everything he — he redacts.

Dieter Dammeier:

That — that’s exactly what we’re saying.

I mean, the interest here is — is for the officer to be upfront as far as what’s business-related to — if he’s paying for things that he shouldn’t be paying for, I’m sure he would — he would be forthright about that.

John G. Roberts, Jr.:

I mean, it’s no different than the police coming in and saying, well, we’re going to look at, you know, what’s in every drawer and then — you know, then if it turns out to be personal and private, we won’t — you know, we won’t — it just happens that we came upon, I guess, is Justice Kennedy’s point.

It’s kind of the plain view doctrine, except they get to decide how broad what they can view is.

Dieter Dammeier:

That’s true.

I agree with that.

John Paul Stevens:

Can I ask you this question about the basic background of a reasonable expectation of privacy?

This is SWAT team work.

Supposing it was an officer answering 911 calls or things like that.

Isn’t there sort of a background expectation that sooner or later, somebody might have to look at communications for this particular kind of law enforcement officer?

Dieter Dammeier:

Well, certainly — certainly that could happen in any number of–

John Paul Stevens:

I mean, wouldn’t you just assume that that whole universe of conversations by SWAT officers who are on duty 24/7 might well have to be reviewed by some member of the public or some of their superiors?

Dieter Dammeier:

–But that — that could be a possibility on any — on anything that they do in their lives, whether it be their personal life or–

John Paul Stevens:

Well, but it’s over official — it’s over the official communications equipment that they use for purposes of law enforcement.

Dieter Dammeier:

–Correct.

Correct.

Anthony M. Kennedy:

I certainly — criminal defense attorneys challenging probable cause would want to look at these.

They would want to see if there is exonerating evidence, under the rule that all exonerating evidence has to be submitted.

It would seem to me that it’s quite likely, as Justice Stevens’ question indicates, that there is going to — that these are going to be discoverable.

Dieter Dammeier:

Well, it’s just like my mail that I might send out to somebody.

It might be discoverable in litigation, but that doesn’t–

Anthony M. Kennedy:

But you’re not — you’re not a police officer who is making arrests.

I mean, this — this is part and parcel of determining probable cause and mitigating evidence.

Dieter Dammeier:

–No, it — obviously, there are different reasons that could come into play that would legally produce these messages, certainly.

Antonin Scalia:

Mr. Dammeier, you could say the same thing about private phones.

There are obviously circumstances in which whether you were making a call between certain times becomes relevant to litigation.

So you could say that destroys the expectation of privacy?

I’m not sure.

I hope we don’t say that.

Dieter Dammeier:

No.

It’s like — this — in O’Connor, all nine Justices in O’Connor found an expectation of privacy in Dr. Ortega’s desk, because even though it was a state-owned desk, you still have an expectation of privacy.

John Paul Stevens:

Yes, but there’s no normal reason for going through somebody’s desk; whereas, there would be a very ordinary — ordinary reason for reviewing calls made to the SWAT — members of the SWAT team, it seems to me.

Dieter Dammeier:

Well, there are — as talked about in O’Connor, there are certainly a lot of valid reasons to go through a public employee’s desk, if you’re looking for a file or if you’re looking for–

John Paul Stevens:

Yes.

Dieter Dammeier:

–Or for — or for an investigation.

But still, there was that expectation of privacy.

You’re talking about employees that — in today’s society, I think work and private life get melded together.

Here, we’re talking about SWAT people 24/7–

Antonin Scalia:

Well, to say that there’s an expectation of privacy in the desk doesn’t say that every intrusion into that expectation of privacy is an unreasonable one.

There could be that expectation of privacy and, still, for some reason — let’s assume there has been a theft in the building, and it’s known that what was taken has not gotten out of the building.

Antonin Scalia:

It’s conceivable that that would be a valid reason to intrude upon the expectation of privacy, right?

Dieter Dammeier:

–Correct.

I don’t think we’re taking away the government’s ability to do searches under proper circumstances.

Antonin Scalia:

Well, why isn’t this a proper circumstance?

Dieter Dammeier:

The initial circumstance might be proper, but how they effectuated it was not.

It was excessively intrusive.

They did not — the purpose was to find out if they were paying for enough work-related messages.

They did not need to look at these, what they knew were going to be private messages.

They knew — the lieutenant had this arrangement that they could use this for personal purposes.

They knew what they were going to be looking at.

Antonin Scalia:

They didn’t know which ones were private messages, did they?

Dieter Dammeier:

Not until they read them.

Antonin Scalia:

Not until they read them.

Dieter Dammeier:

But there certainly — they certainly knew what might be coming because of the arrangement that Lieutenant Duke had in place.

Here — here I think that’s–

Samuel A. Alito, Jr.:

What was the arrangement that Lieutenant Duke had in place?

I thought all he said was: I don’t have an intent to read these, because it’s too much trouble, so if you go over and you pay me the extra, I’m not going to read them.

Dieter Dammeier:

–His–

Samuel A. Alito, Jr.:

Did he ever say that — that I’m not — that you have a privacy right in these things?

Dieter Dammeier:

–No, but according — according to Sergeant Quon’s testimony, he told him: As long as you pay the overages, we’re not going to read them.

And that–

Ruth Bader Ginsburg:

Did he say “we”?

He — even Quon didn’t say that.

Duke said he wouldn’t do it.

But earlier, the — at the meeting, the statement was made that these are open to audit.

Didn’t say only by Lieutenant Duke.

Dieter Dammeier:

–True.

True.

I agree.

But it was Lieutenant Duke, the one that was making the announcement that now these pagers are going to fall under the computer policy, the same lieutenant who then gave the assurance that as long as you pay the overages, we’re not — we’re not going to look at them.

Dieter Dammeier:

I mean, when you’re talking about the operational reality of O’Connor, that was the operational reality.

The SWAT members knew: As long as I pay the overages, my messages aren’t going to be reviewed.

John G. Roberts, Jr.:

What happens, just out of curiosity, if you’re — he is on the pager and sending a message and they’re trying to reach him for, you know, a SWAT team crisis?

Does he — does the one kind of trump the other, or do they get a busy signal?

Dieter Dammeier:

I don’t think that’s in the record.

However, my understanding is that you would get it in between messages.

So messages are going out and coming in at the same time, pretty much.

John G. Roberts, Jr.:

And would you know where the message was coming from?

Dieter Dammeier:

I believe so.

It identifies where it’s coming from.

It identifies the number of where it’s coming from.

If you know the number, you know where it’s coming from.

Anthony M. Kennedy:

And he’s talking with a girlfriend, and he has a voice mail saying that your call is very important to us; we’ll get back to you?

[Laughter]

Dieter Dammeier:

Well, I think with the text messages — and that’s what we are talking about the transcripts of, were the text messages that were data transferred from device to device, and here, you know, we come back to — I did want to touch a little bit on the Stored Communications Act having play on somebody’s expectation of privacy — you know, it’s — lawfully, those messages were protected.

And I think, looking at people’s expectation of privacy, that should be a component.

It certainly may be not the end-all to the question, but it should be a factor in determining whether or not there’s going to be an expectation of privacy.

Antonin Scalia:

Did — did he know about that statute?

I didn’t know about it.

Dieter Dammeier:

That’s not in — that’s not in the record.

That is not in the record.

But–

Antonin Scalia:

Can we assume he didn’t?

Dieter Dammeier:

–Right.

Well, we can assume that, but we also–

Antonin Scalia:

And what difference would that make?

Dieter Dammeier:

–I still don’t think anything, given the operational realities–

Antonin Scalia:

I don’t see how it can affect his expectation of privacy, if he didn’t even know about it.

Dieter Dammeier:

–Well, it’s — it’s just like the California Public Records Act.

We should also assume he didn’t know about that as well, because the — Petitioners make an argument that because there is this California Public Records Act, that that may diminish one’s expectation of privacy.

Dieter Dammeier:

Certainly, if we’re going to have that, then we should also be having the Stored Communications Act that might enhance the–

Antonin Scalia:

Ignorance of the law is no excuse, is what you’re saying?

Sonia Sotomayor:

Do you have any theory, or do you make any argument that Florio, Trujillo, and Quon’s wife can succeed in their Fourth Amendment claims, if Quon can’t?

Dieter Dammeier:

–I do.

We, in our brief, try to analogize that to the mail.

I think when they sent messages to — to Sergeant Quon, that was a letter that I sent.

And here, the department didn’t go get that letter from Sergeant Quon after — after delivery, meaning go get it from his pager.

They went to the equivalent of the Post Office, which was Arch Wireless, and got a copy off of their server.

So I — I think — and, again, analogizing to the mail, they have an expectation of privacy while that message is in the course of delivery.

John G. Roberts, Jr.:

Well–

Samuel A. Alito, Jr.:

Well, suppose it was perfectly clear that — I mean, suppose that the department gave Mr. Quon a policy — a statement that says: Sign this, you acknowledge that your pager is to be used only for work and that you have no privacy interest in it whatsoever; we’re going to monitor this every day.

And then these other individuals sent him messages.

You would still say they have an expectation of privacy in those messages?

Dieter Dammeier:

Until the point that it’s on Quon’s pager.

I think under that scenario, that they could have obtained the messages from Quon, but they went over to Arch, the equivalent of the Post Office, and got them from them.

It’s like if I — I make a copy of a letter before I send it to somebody.

You know, down the road, I might not know what happens and I might lose my expectation of privacy down the road, but that copy I kept, I think there is still an expectation.

Antonin Scalia:

Well, what — when you send a text message to somebody else, aren’t you quite aware that that text message will remain confidential only to the extent that either the recipient keeps it confidential — and he can disclose it — or somebody else who has power over the recipient or over the recipient’s phone chooses to look at it?

Don’t — isn’t that understood when you send somebody a text message?

Dieter Dammeier:

I — I agree with that, and–

Antonin Scalia:

Well, so she should have understood that, you know, whoever could get ahold of his phone lawfully can read the message.

In other words, I don’t see that she’s in a — in a different position from Quon himself.

Dieter Dammeier:

–I think it’s just a slightly different one.

I mean, first of all, they didn’t lawfully get it; there was a violation of the Stored Communications Act to get it.

Antonin Scalia:

Well, that’s a different issue.

Dieter Dammeier:

But here, again, had they gotten consent from — from Quon and got it from him directly, that’s a — that’s a different story.

John G. Roberts, Jr.:

–Well, again, it depends upon their reasonable expectation.

Do any of these other people know about Arch Wireless?

Don’t they just assume that once they send something to Quon, it’s going to Quon?

Dieter Dammeier:

That’s — that is true.

Dieter Dammeier:

I mean, they expect–

John G. Roberts, Jr.:

Well, then they can’t have a reasonable expectation of privacy based on the fact that their communication is routed through a communications company.

Dieter Dammeier:

–Well, they — they expect that some company, I’m sure, is going to have to be processing the delivery of this message.

And–

John G. Roberts, Jr.:

Well, I didn’t — I wouldn’t think that.

I thought, you know, you push a button; it goes right to the other thing.

[Laughter]

Dieter Dammeier:

–Well–

Antonin Scalia:

You mean it doesn’t go right to the other thing?

[Laughter]

Dieter Dammeier:

–It’s — I mean, it’s like with e-mails.

When we send an e-mail, that goes through some e-mail provider, whether it be AOL or Yahoo.

It’s going through some service provider.

Just like when we send a letter or package, it’s going through — some provider is going to move that for us, until it gets to the end recipient.

And like the mail, that message enjoys an expectation of privacy while it’s with the Post Office–

Antonin Scalia:

Can you print these things out?

Could Quon print these — these spicy conversations out and circulate them among his buddies?

Dieter Dammeier:

–Well, he could have ultimately, sure.

Antonin Scalia:

Well–

Dieter Dammeier:

And — and like, when I get a piece of mail from somebody, I could do that as well, but that doesn’t mean that the government gets to go to the Post Office and get my mail before I get it.

I think — I think that, you know, certainly adds a little bit to the correspondence that dealt with–

John G. Roberts, Jr.:

But just — just to be clear: You think if these messages went straight to Quon that there’d be no problem from the point of view of the senders?

I mean, no problem in searching — getting them from Quon?

Dieter Dammeier:

–I think it’s certainly a harder argument for me to make–

John G. Roberts, Jr.:

Yes.

Dieter Dammeier:

–that they have an expectation after — after Quon has it.

John G. Roberts, Jr.:

So we have to assume for your argument to succeed that they know that this goes somewhere else and then it’s processed and then it goes to Quon.

Dieter Dammeier:

Yes, but I think in today’s — I think in today’s society that’s — that’s a reasonable assumption to make.

One–

Antonin Scalia:

–Yes, I didn’t know.

Dieter Dammeier:

–I think it might have been Florio testified that she actually called her carrier to find out, you know, if — if the messages that she would transmit would be maintained and that was — that they didn’t maintain a copy.

So there was some understanding of how the process worked.

Samuel A. Alito, Jr.:

Can an officer who has one of these pagers delete messages from the pager–

Dieter Dammeier:

Yes.

Samuel A. Alito, Jr.:

–so that they can’t be recovered by the department if the pager is turned into the department?

Dieter Dammeier:

Sure.

Yes.

Samuel A. Alito, Jr.:

They can delete them?

Dieter Dammeier:

They can delete them.

Just like if they received a letter, they could be put in the shredder.

Antonin Scalia:

Suppose I sent somebody a letter and — and I have privacy in that letter, and let’s assume it’s intercepted at the Post Office, but I have also published the letter in a letter to the editor of the newspaper.

I have written the following letter to Sergeant Quon.

Do I still have a right — a right of privacy in that letter?

Dieter Dammeier:

Well, I think then certainly your expectation may be diminished.

Antonin Scalia:

Well, but that’s the situation here.

The — the central location that stores the message is one thing, but she’s made — made the message public effectively by sending it to Quon.

Once it gets to Quon, she knows that Quon can make it public or that the employer can — can find out about it.

Dieter Dammeier:

But that would create a free-for-all in service providers.

If — if while this message, after it’s sent and it’s in transit–

Antonin Scalia:

Right.

Dieter Dammeier:

–It’s a free-for-all.

The government could just go in and–

Antonin Scalia:

Exactly.

That — and that’s why you have the statute, because the Fourth Amendment wouldn’t solve the problem, because you are effectively making it public by sending it to somebody whom you don’t know is immune from disclosure.

So, in order to stop the intermediary from making it public, you needed the statute.

Otherwise you wouldn’t need it; the Fourth Amendment would solve the problem, right?

Dieter Dammeier:

–Well, certainly, obviously the statute could come into play in addition to the Fourth Amendment.

But here, you know, I come back to the mail analogy.

Just because at the end of the line somebody might disseminate my letter doesn’t lose an expectation in the copy that I make that I may keep or that in the course of delivery the Post Office might keep.

I still enjoy an expectation — and the Fourth Amendment should certainly protect that copy, that either I kept or the Post Office is keeping in the course of delivery.

Dieter Dammeier:

Certainly, at the end of the line, that letter could be published to the world, but that’s not the same thing as the government coming in and getting a copy of it while it was being delivered.

Samuel A. Alito, Jr.:

Are you sure that — are you sure about your answer to the question of deletion?

It’s not like deleting something from a computer which doesn’t really delete it from the computer?

Dieter Dammeier:

Honestly, I’m not — that’s not in the record, and the — how that pager works as far as deleting, I couldn’t be certain that it would be deleted forever.

I would certainly not.

One — one of the points to — to raise, too, was that most of these texts took place off duty when dealing with Sergeant Quon.

So, again, back to looking at the actual practice that O’Connor has us look at, you know, here again–

Sonia Sotomayor:

I thought the factual record was the opposite, that in fact most of the calls were — not most, but a huge number of calls were happening on duty.

Dieter Dammeier:

–There were — there were a large number on-duty.

I think it was broken down to where the average was 27 in a work shift and the most on one day was 80.

But also they talked about — they took about 15 seconds.

So you’re talking about an average of about 7 minutes during — during a work day.

But the testimony of Sergeant Quon was that most of these were actually off-duty.

And, you know, I certainly — I think that should come into play, given the department — they gave them pagers.

And it wasn’t a one-way use; it wasn’t, hey, this is, you know, for the benefit of the employee.

The department received a benefit.

I mean, they wanted to be able to have these SWAT guys show up quickly, respond quickly, and there was a mix on — on the reasons for these pagers.

The exchange was, we’re going to let you use these for personal purposes, and given that reality, you should be able to have some — some expectation of privacy in that use.

It’s like if I pick up a phone and I’m a public employee and I call my wife, I should be able to have some expectation of privacy in a conversation, especially given, you know — you talk about guys that are on 24/7.

Do they have no private life, now?

Do they not have–

Ruth Bader Ginsburg:

I thought the policy was limited personal use.

Dieter Dammeier:

–The computer policy was limited personal use.

Again, depending on how that comes into play with what Lieutenant Duke–

Ruth Bader Ginsburg:

But the — the notice was we’re going to treat these just like e-mails, and e-mails were limited personal use.

Dieter Dammeier:

–Correct.

With — with the additional modification by — by Duke, that you could also use them for personal purposes, from day one when the pagers were issued.

John G. Roberts, Jr.:

Thank you, counsel.

Dieter Dammeier:

Thank you.

John G. Roberts, Jr.:

Mr. Richland, you have 3 minutes remaining.

Kent L. Richland:

Thank you.

I would first like to just make it clear that what it is being claimed was the guarantee of privacy by Lieutenant Duke is really absolutely not that at all.

And I would refer the Court to Joint Appendix page 40, which does summarize that, and it says — here is what precisely what Lieutenant Duke said:

“Because of the overage Lieutenant Duke went to Sergeant Quon and told him the city-issued two-way pagers were considered e-mail and could be audited. “

So that’s what he said first.

Then he said — he told Sergeant Quon it was not his — his intent to audit employees’ text messages to see if the overages were due to work-related transmissions.

He advised Sergeant Quon he, Sergeant Quon, could reimburse the city for the overages so he, Duke, would not have to audit the transmission and see how many messages were non-work-related.

Lieutenant Duke told Sergeant Quon he is doing this because if anybody wished to challenge their overage, he could audit the text transmissions to verify how many were non-work-related, and then, finally, Lieutenant Duke added, the text messages were considered public records and could be audited at any time.

That is what is being characterized as a guarantee of privacy.

It’s hard to see how that in any way undercuts the official written policy.

Antonin Scalia:

Mr. Richland, do you take any position on whether Jerilyn Quon, April Florio, and Steve Trujillo stand in the same position as Sergeant Quon insofar as this lawsuit is concerned?

Kent L. Richland:

We do, with respect — in at least one respect, and that is: If Sergeant Quon loses, then we think the other plaintiffs must also lose.

Antonin Scalia:

Why?

Kent L. Richland:

Yes.

The reason for that is that this Court has held on many occasions that, once one has sent a communication or an object to another person, they lose their expectation of privacy in–

Sonia Sotomayor:

That means the government can set up an interception mechanism on telephone transmissions, on e-mail, computer transmissions–

Kent L. Richland:

–It — it does not mean that, Justice Sotomayor.

Sonia Sotomayor:

–If it doesn’t mean that, answer his argument that, yes, you could take anything from Quon, but the storage — you went to the storage facility, which is a Post Office.

Kent L. Richland:

And he says it’s a Post Office, but the truth is that all of these plaintiffs admitted that they knew that this was a department-issued pager, and this wasn’t a Post Office.

Arch Wireless was the department’s agent.

These text messages were being sent to someplace.

Both the written policy and the oral policy indicated that they were being stored–

Sonia Sotomayor:

So you have to get into who owned–

Kent L. Richland:

–Excuse me.

Sonia Sotomayor:

–Whether this was a — we have to get into the Storage Act and figure out whether this was an RCN or ACS?

Kent L. Richland:

Well, I think that — I don’t know that it’s necessary to do that, because I think that all that must be determined is — and I don’t think whether it’s an ECS or RCS is — you would require that to determine who owned it, because it was clear that Arch acted solely as the city’s agent.

Antonin Scalia:

Whoa, whoa.

I’m not sure you’re doing the city a favor by making Arch the city’s agent–

Kent L. Richland:

I understand–

Antonin Scalia:

–as opposed to an independent contractor who is doing business with the city.

Kent L. Richland:

–The point is–

Antonin Scalia:

You sure you want to live with that?

Kent L. Richland:

–I don’t mean “agent” in — in the most literal sense, Justice Scalia.

Antonin Scalia:

Oh, okay.

Kent L. Richland:

What I mean is that they were — in effect, when there was a delivery to Arch Wireless, it was a delivery to the city.

And all of these individuals knew that this was city equipment, and, therefore, this was being delivered to the city.

John G. Roberts, Jr.:

Thank you, counsel.

The case is submitted.