jury had found that the chief was only trying to determine the adequacy of the 25,000-character limit, not
to uncover possible misconduct.
But the 9th Circuit reversed, saying not only that
the plaintiffs had a reasonable expectation of privacy
in their messages—given what they had been told by
their supervisor—but that the search of Quon’s pager
was unreasonable because the department had other,
less intrusive methods of finding out whether the
25,000-character limit was adequate short of reviewing all of his messages.
That decision by a liberal three-judge panel caused
an uproar in the circuit, where a number of conservative
judges petitioned the full court to rehear the case. And
although a majority of the court’s active judges voted to
deny the petition for rehearing, six of them signed on to
a stinging dissent by Judge Sandra Ikuta.
The dissent accused the panel of adopting a standard
that makes it exceptionally difficult for public employers to go about the business of running government offices. In doing so, it said the decision conflicts with both
Supreme Court precedent and the holdings of seven
other circuits.
“By holding that a SWAT team member has a reason-
able expectation of privacy in the messages sent to and
from his SWAT pager, despite an employer’s express
warnings to the contrary and ‘operational realities of the
workplace’ that suggest otherwise, and by requiring a
government employer to demonstrate that there are no
more less intrusive means available to determine wheth-
er its wireless contract was sufficient to meet its needs,
the panel’s decision is contrary to ‘the dictates of reason
and common sense’ as well as the dictates of the
Supreme Court,” Ikuta wrote.
‘REALITIES’ CHECK
IN O’CONNOR, WHICH DEALT WITH A PHYSICAL SEARCH OF
a hospital psychiatrist’s office, the court recognized that
If a trademark is misused it could come undone.
If you didn’t know zipper was a trademark, don’t worry, it’s not. But it used to be. It was lost because
people misused the name. And the same could happen to ours, Xerox. Please help us ensure it doesn’t.
Use Xerox only as an adjective to identify our products and services, such as Xerox copiers, not a verb,
“to Xerox,” or a noun, “Xeroxes.” Something to keep in mind that will help us keep it together.
xerox.com
