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Justin L. Conforti,
Editor-in-Chief, Seton Hall Circuit Review

Cited in Brief to U.S. Supreme Court!

A Comment published in the Seton Hall Circuit Review and written by its Editor-in-Chief, Justin Conforti ('10), was cited and quoted on four separate occasions in the City of Ontario's successful bid to have the Supreme Court hear its appeal in City of Ontario v. Quon. In seeking certiorari from the decision of the United States Court of Appeals for the Ninth Circuit, the City of Ontario cited Conforti's article, Somebody's Watching Me: Workplace Privacy Interests, Technology Surveillance, and the Ninth Circuit's Misapplication of the Ortega test in Quon v. Arch Wireless (5 Seton Hall Cir. Rev. 461 (2008-2009)). The City of Ontario filed this Reply Brief For Petitioners, relying on Conforti's work, on November 13th of 2009. The Supreme Court granted certiorari in the case on December 14th of 2009.

Professor Timothy Glynn, advisor to Conforti on the Comment, remarked, "Quon is a pivotal case in modern workplace privacy law—its implications could well be felt throughout the legal and popular landscape. To be not only cited, but quoted four times in the City's brief to the Supreme Court is a truly great achievement for a law student."

In Quon (Docket No 08-1332), the Supreme Court will consider whether plaintiff, "a SWAT team member, had a reasonable expectation of privacy in text messages sent to and from his work pager." The text messages in question were of an explicit nature and were discovered during a police department usage audit. Professor Orin Kerr of George Washington University Law School noted for the New York Times that this will be the Supreme Court's "first case on Fourth Amendment protection in data networks."

The Ninth Circuit found that the City had no official privacy policy expressly directed to text-messaging from pagers. It did have a general "Computer Usage, Internet and E-mail Policy" for City-owned computers and associated equipment which restricted private use and cautioned that "Users should have no expectation of privacy or confidentiality when using these resources."

Nevertheless, the Ninth Circuit concluded that this policy did not justify the City's access to Quon's texts because a lieutenant specifically allowed some personal use of the pagers. For the Ninth Circuit, that was enough to give Quon a reasonable expectation of privacy that was violated by the City's audit. The Ninth Circuit said the department's formal policy had been overridden by the 'operational reality' of the lieutenant's informal policy.

In addition to the New York Times, the case has been featured in the Wall St. Journal, the Washington Post, the LA Times and a host of other newspapers and legal blogs.

document See the City of Ontario's Reply Brief here

document See Somebody’s Watching Me: Workplace Privacy Interests, Technology Surveillance, and the Ninth Circuit’s Misapplication of the Ortega test in Quon v. Arch Wireless here