The issue resolved in City of Ontario v. Quon, __ US __ (2010), turned on whether a police officer’s Fourth Amendment rights were violated when his employer, the police department, reviewed text messages on his pager for legitimate business reasons. The Court held that the search was reasonable.
While criminal law is not our forte, this case has potentially enormous significance for privilege in electronic communications. At this time, a wave of cases addressing whether an employer, or (much more significantly), a third party, e-mails sent from an e-mail account maintained at a business where that business as an enforceable policy providing that personal e-mails are monitored and not confidential can, nonetheless, be claimed as privileged. Although the issue typically arises in employee-employer litigation, where the employer wants access to e-mails sent from the employee to his lawyer, the principle that privilege is waived would apply where a third-party seeks access as well.
Quon will likely influence this body of law, as well. Stay tuned.