[NYCInfoLaw] Reading Group this Tuesday Feb 2 @ NYLS

[Joe Merante]

Hi Everyone,

Just a friendly reminder that the next reading group will be this Tuesday,
Feb 2, 7-9pm at NYLS.  Details and suggested readings below.  Please rsvp to
me if you can make it.

Best,

Joe



Date: Tuesday, February 2, 2010, 7:00 to 9:00 p.m.
Location: New York Law School Wellington Conference Rooms A and B.  Enter at
180 West Broadway
(map<http://maps.google.com/maps?q=180%20west%20broadway&oe=utf-8&rls=org.mozilla:en-US:official&client=firefox-a&um=1&ie=UTF-8&sa=N&hl=en&tab=wl>),
take the elevator the 5th floor, and walk through the passageway near the
restrooms.  The rooms are immediately on the other side.  There will be
signs.



Topic: "The Digital Fourth Amendment: Privacy Expectations and the Cloud."

The Ninth Circuit’s decision in Quon v. Arch Wireless has “open[ed] a new
frontier in Fourth Amendment jurisprudence that has been little explored.”
529 F.3d 892, 904 (2008). The court denied rehearing en banc, and on
December 14, 2009, the Supreme Court granted cert. to resolve three separate
Fourth Amendment questions. The Court did not certify a question on the
Stored Communications Act issue. The case involves a police officer’s text
messages on a department-issued pager and a battle between formal and
informal department policies.

While some have speculated that the court may limit its decision to the
government employee context, the decision will likely affect private
employers as well. Also, many think that clarity on the role of the Fourth
Amendment and new communications technology is sorely needed. The third
question certified by the Court, whether third parties have an expectation
of privacy in text messages sent to government employees, raises some
interesting issues with respect to state or federal FOIA and public
disclosure laws in addition to the
Fourth Amendment.  Join us for a discussion of the case, the Fourth
Amendment, the Stored Communications Act, and the role of third parties in
protecting (or obliterating) our expectations of privacy.

Suggested Readings below or on the nycinfolaw calendar:
http://tinyurl.com/y8nwmzp

*Overview:
http://articles.latimes.com/2009/dec/15/nation/la-na-court-privacy15-2009dec15

*More in-depth overview with links to commentary:
http://blog.ericgoldman.org/archives/print_001708.html

*Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892 (2008).  Available
at http://www.ca9.uscourts.gov/datastore/opinions/2008/06/18/0755282.pdf.
In short, Officer Quon went over his monthly text allotment on a
department-issued pager.  Despite a written policy explaining that
communications were not confidential, Quon relied on a previously enforced
informal policy that let him pay for the overage, no questions asked.  The
department had enough of being a bill-collector, retrieved Quon’s messages
from the service provider, and noticed some pretty salacious goodies in his
messages (not related to work).  The Ninth Circuit held, among other things,
that Quon had a reasonable expectation of privacy in the contents of his
text messages, which were no different than letters or emails discussed in
previous Ninth Circuit cases.  The Court also held that the police
department had less intrusive means available than accessing the contents of
the messages.
*Grant of cert. Available at http://www.supremecourtus.gov/qp/08-01332qp.pdf
.

*Robert Sprague, Orwell Was an Optimist: The Evolution of Privacy in the
United States and its De-Evolution for American Employees, John Marshall Law
Review, Vol. 42, pp. 83-135, 2008.
Available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1404548

This article argues that the fluid Fourth Amendment definitions we currently
have put employees at risk of further eroding their already limited
protections.  It starts with a few interesting hypotheticals, a discussion
of the development of common law and constitutional conceptions of privacy,
and the Electronic Communications Privacy Act.  The last two sections
discuss privacy in the workplace and “argues that as more workers bring
their work into their home and private lives, ‘workplace’ restrictions on
privacy will erode the one last bastion of privacy--one's home.”  The author
endorses the holding in Quon.

*Orin Kerr, The Case for the Third-Party Doctrine, 107 Mich. L. Rev. 561,
2009.  Available at
http://www.michiganlawreview.org/assets/pdfs/107/4/kerr.pdf

Kerr discusses the continuing importance of the Fourth Amendment's
third-party doctrine, which began with US v. Miller and has been re-affirmed
numerous times, e.g. Smith v. Maryland.  Miller basically held that
information loses its Fourth Amendment protection when it is knowingly
revealed to a third party.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1404548

Extras:
*The Ninth Circuit's denial of petition for rehearing en banc.  Available at
http://www.ca9.uscourts.gov/datastore/opinions/2009/02/06/0755282o.pdf

*O’Connor v. Ortega – The Court won’t be able to avoid this fractured
opinion, which is explicitly mentioned in the grant of cert.  Case syllabus
available at http://supreme.justia.com/us/480/709/.



-- 
Joseph Merante
Student Research Fellow, NYLS IILP
3L, New York Law School
(c) 617-372-6540
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