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Supreme Court Tackles Tantalizing Texts, OMG!

December 14, 2009

Cop texts dirty with girlfriend on City pager; Chief reads texts; Cop sues for unreasonable search — 4th Amendment and all.  Ninth Circuit says, “Yup.”  Cop had a reasonable expectation of privacy in his texts.

What were they thinking?  Well, Cop was thinking he had permission to text his gal (despite knowledge that emails and Internet use were subject to monitoring) because City said he could — just pay for overages.  Chief was thinking, “Wonder what my guys are really using these pagers for?”  So he orders the transcripts.  No telling what the Ninth Circuit was thinking except possibly, “What’s a text message?” followed by, “Well, on these facts …”   And the 9th is notorious for being both trailblazers and loopy – sometimes simultaneously.

The Washington Post notes:

The ruling, by a panel of the U.S. Court of Appeals for the 9th Circuit, was the first of its kind, and the judges acknowledged that the “recently minted standard of electronic communication via e-mails, text messages, and other means opens a new frontier in Fourth Amendment jurisprudence that has been little explored.”   * * *

The case produced a deep divide among the circuit’s judges. When the full court decided not to reconsider the decision, a 10-page dissent calling it “contrary to the dictates of reason and common sense” seemed written to interest the Supreme Court in the issue.  [Supreme Court will decide whether employees’ text messages are private –]

IMHO the Supremes have something in mind other than just tackling the narrow question of  whether government employees have a reasonable expectation of privacy in office-originating SMS when told they do.  But maybe the Supremes just feel the need to flip a renegade 9th on this one.

?  c u ltr :-)

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