Sexting Case Befuddles Supreme Court: 'What's The Difference Between Email And A Pager?'

The case of City of Ontario vs. Quon, which concerns 'sexting' via employer-issued pagers and bears major implications for employee privacy rights, headed to the Supreme Court this week.

As we wrote here, the case concerns Sergeant Jeff Quon and three other plaintiffs, including Quon's wife and mistress, who were employed with the Ontario police department. The plaintiffs sued the Chief of police for reading sexually explicit messages that were sent via pagers provided by the department. A lower court ruled in favor of the plaintiffs in 2008, and now the defendants have appealed their case, which headed for the Supreme Court.

As the Supreme Court began hearing oral arguments in the case, it seemed that the justices required clarification on some of the technological details of the case.

LawyersUSA's DC Dicta blog offers up some examples:

The first sign was about midway through the argument, when Chief Justice John G. Roberts, Jr. - who is known to write out his opinions in long hand with pen and paper instead of a computer - asked what the difference was “between email and a pager?”

At one 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.

Justice Antonin Scalia wrangled a bit 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.

DC Dicta adds the even Quon's attorney had some "technical difficulties," stumbling to explain the intricacies of whether and how text messages could be deleted.

In this case, it seems an intimate familiarity not only with constitutional law and legal precedents, but also with the ins-and-outs of WSPs and SMS, are crucial to the case. Yet it should be noted that the Justices' queries may not signal their confusion, but rather their efforts to clarify specific, key details pertaining to the 'sexting' exchange.

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