April 27, 2010

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There was an interesting exchange a few days ago during a case that the Supreme Court was hearing about an employee's right to privacy while texting.

Kashmir Hill

Today, the Supreme Court heard the case of the California SWAT officer who sued the city of Ontario for violation of his privacy after his employer reviewed the messages he sent on his work-issued pager. He had been using the pager for personal text messages — notably for steamy SMSes to his estranged wife and to his girlfriend with whom he worked. (More background here.)

At first glance, the case might seem like an easy one. Of course the police department has the right to look at messages sent on an officer’s work pager, right?

But then think about it in your own context. Do you assume that your employer is reviewing every text you send from your work phone? Is it fair for your employer to look at every email that goes out from your work computer? Does it matter whether it’s going from your work account or your personal gmail account?

I know some of the quirks that our Supreme Court justices have are great fun for reading and conversations like this one via Jeff Toobin:

JEFFREY TOOBIN: He’s gone now, but probably Souter. He was so odd. No cell phone, no computer, didn’t like electric light, ate an apple (including core) and yogurt for lunch every day. And a brilliant guy. What’s not to like?

However, these idiosyncrasies aren't so cute when it comes to the law.

If our Supreme Court justices don't know the difference between a pager and an email--how can they render important decisions in today's tech savvy world?

According to this post, at DC Dicta, the Court asked some questions of the lawyers which, well, the justices’ kids and grandkids could have answered while sleepwalking.

According to the story, the first sign of trouble came was about midway through the argument, when Chief Justice John Roberts asked what the difference was “between email and a pager?” (Cue sound of hard slap against forehead.)

At another point, Justice Anthony Kennedy asked what would happen if a text message was sent to an officer at the same time he was sending one to someone else.

“Does it say: ‘Your call is important to us, and we will get back to you?’” Kennedy asked. (Cue sound of louder slap against forehead.)

Justice Antonin Scalia stumbled getting his arms around with the idea of a service provider.

“You mean (the text) doesn’t go right to me?” he asked.

Then he asked whether they can be printed out in hard copy.

“Could Quon print these spicy little conversations and send them to his buddies?” Scalia asked.

This is just horrifying.

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