Making haste slowly

Back in 2010, the U.S. Supreme Court decided a case between the City of Ontario, California, and a police officer it employed that had some interesting implications for workplace privacy and, surprisingly, the Fourth Amendment — the one that deals with search and seizure law. What’s perhaps most interesting about the case, though, is that it revealed how the Court’s justices weren’t (and likely, still aren’t) exactly wizards at modern communication.

Jeff Quon was a sergeant with the SWAT unit of Ontario’s police. In 2001, the City bought “alphanumeric pagers” for Quon and the other officers on the department so that they could be on-call 24 hours a day. (For those under, oh, the age of 30, “pagers” were a precursor to cell phones. It allowed someone to someone a telephone number, thereby requesting a call-back. Like cell phones, one could also use them to send texts back and forth.) The carrier who supplied the city’s pagers, however, had a “character limit” based on the number of messages sent by each pager; send too many texts and there were extra monthly charges.

Quon occasionally exceeded his limit, but was told by his lieutenant that if he paid the difference, the department wouldn’t review his messages. When Quon exceeded his limit several times, however, the police chief nevertheless decided to audit Quon’s device. He obtained transcripts of Quon’s messages from the wireless carrier and discovered that one reason Quon sent so many messages was that a lot of them were sexually explicit texts to his wife and to his mistress — both of whom happened to work for the Ontario Police. Oops.

Quon was disciplined over this, but then he, his wife, and his mistress all sued the wireless company and the city, arguing that their privacy rights were violated. If nothing else, this conjures up an amusing image of the three of them sitting tensely together at the same table in the courtroom.

The lower court threw out most of the case, but the federal appeals court decided that, despite the city’s written policy that it owned the pagers and had access to the transcripts, the lieutenant’s statement to Quon meant that the city had, indeed, violated Quon’s and his, um, associates’ privacy rights. The Supreme Court then agreed to hear the case.

When the case was argued, Justice Samuel Alito got the ball rolling by asking, “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?” Keep in mind — these were pagers, after all — not exactly exotic technology.

But of course, as recently as the early 2000s there was only one computer in the whole Supreme Court building hooked up to the Internet.

Chief Justice John Roberts (at the time, age 55 and the youngest member of the court) asked, “Maybe — maybe everybody else knows this, but what is the difference between a pager and e-mail?” Roberts, of course, has bragged in interviews how he writes out all of his opinions in longhand using a fountain pen. And he only does that because these days it’s hard to keep a good supply of goose quills handy.

A bit later Roberts also asked, “what happens... if.. . 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?”

The lawyer explained that the pager would have told Quon that he needed to call in, to which he could respond later, leading Justice Anthony Kennedy to crack, “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?” Broke the place up. Tech-savvy or not, the court eventually ruled in the city’s favor. Because Quon knew that the city owned the pagers, and because it audited Quon’s use only to decide whether it was paying for enough usage each month, obtaining the transcripts didn’t violate his, or his . . . associates’ rights.

But maybe what the case revealed about the justices’ unfamiliarity with high-tech shouldn’t surprise us. After all, this is a group of people who — even though they all work in the same building — have communicated for decades by sending memos to one another.

Typeset, printed memos. It’s as if that new-fangled telephone thingy is just too intimidating.

But that’s the Supreme Court — lurching, cautiously, into the nineteenth century.