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January/February 2010 HEDDA LITWIN, PROJECT COUNSEL & EDITOR JANUARY-FEBRUARY 2010 The Cyber Crime Newsletter is developed under TABLE OF CONTENTS the Cyber Crime Training Partnership between the National Association of Attorneys General (NAAG) FEATURES………………………………………………1 and the National Center for Justice and the Rule of AG’S FIGHTING CYBERCRIME…….………….3 Law (NCJRL) at the University of Mississippi School IN THE COURTS……………………………………..8 of Law. It is written and edited by Hedda Litwin, SUPREME COURT NEWS.……..……….……….11 Cyberspace Law Counsel ([email protected], 202- LEGISLATIVE NEWS……….……………………..11 326-6022). NEWS YOU CAN USE…………………..….……..12 This project is supported by grants provided by TOOLS YOU CAN USE…………...…….…….…..14 the Bureau of Justice Assistance. The Bureau of FREE TRAINING.……………………………….....15 Justice Assistance is a component of the Office of Justice Programs, which includes the Bureau of like to feature articles written by you. Please con- Justice Statistics, the National Institute of Justice, tact us with information, proposed articles and com- the Office of Juvenile Justice and Delinquency ments about this newsletter. Thank you. Prevention, and the Office of Victims of Crime. Points of view or opinions in this document are those of the authors and do not represent the offi- SUPREME COURT TAKES 4TH cial position of the United States Department of Jus- tice. AMENDMENT TEXTING CASE The views and opinions of authors expressed in this newsletter do not necessarily state or reflect The U.S. Supreme Court agreed to decide those of the National Association of Attorneys whether a police department violated the constitu- General (NAAG). This newsletter does not provide tional privacy rights of an employee when it in- any legal advice and is not a substitute for the spected personal text messages sent and received procurement of such services from a legal on a government pager. The case opens “a new professional. NAAG does not endorse or recom- frontier in Fourth Amendment jurisprudence,” ac- mend any commercial products, processes, or cording to a three-judge panel of an appeals court services. Any use and/or copies of the publication that ruled in favor of the employee. The following is in whole or part must include the customary a summary of the case written by Dan Schweitzer, bibliographic citation. NAAG retains copyright and all Supreme Court Counsel at NAAG. other intellectual property rights in the material pre- sented in the publications. City of Ontario v. Quon, 08-1332. At issue is whether a city police department violated the Fourth In the interest of making this newsletter as use- Amendment rights of a police officer when it read ful a tool as possible for you, we ask that you keep the transcripts of text messages the officer sent us informed of your efforts. Additionally, we would while on duty on a department-issued text- © 2009, NAAG, 2030 M STREET, NW • 8TH FLOOR • WASHINGTON, DC 20036 • (202) 326-6022 • WWW.NAAG.ORG CYBERCRIME NEWSLETTER JANUARY-FEBRUARY 2010 messaging pager. The City of Ontario, California had (1987) (plurality). The Ninth Circuit reversed, hold- a written policy advising employees that use of City- ing that respondents were entitled to summary judg- owned computer-related services for personal pur- ment in their favor. 529 F.3d 892. poses was forbidden, that the City reserves the right to monitor “all network activity including e-mail and Internet use, with or without notice,“ and that “[u] The Ninth Circuit held as a threshold matter that sers should have no expectation of privacy or confi- respondents possessed a reasonable expectation of dentiality when using these resources.” When the privacy in their text messages. The court found that City Police Department obtained text-messaging the City’s general non-privacy policy was overridden pagers for its SWAT team officers, it told the officers by Lieutenant Duke’s informal policy of not auditing that the e-mail policy applied to pager messages. pagers so long as the officers paid any overages. The City, however, had to pay extra when a pager Because Duke was in charge of administering the went above its monthly character limit. The officer pagers, and Quon’s messages had never previously in charge of the administration of the pagers, Lieu- been reviewed, Quon had a reasonable expectation tenant Steve Duke, adopted an informal agreement of privacy in the text messages. The court next held that he would not audit pagers that went above the that the search was not reasonable. The court ap- monthly limit if the officers agreed to pay for any plied O’Connor, in which the plurality stated that, overages. Eventually, Lieutenant Duke became tired “[g]iven the great variety of work environments in of collecting bills. That prompted the Chief of Police the public sector, the question whether an employee to order a review of the pager transcripts for the two has a reasonable expectation of privacy must be officers with the highest overages to determine addressed on a case-by-case basis” that looks to “[t] whether the monthly character limit was insufficient he operational realities of the workplace.” The court to cover business-related messages. One of those found that the search was not reasonable in scope officers was respondent Sergeant Jeff Quon. After because the government could have accomplished initial Department review, the matter was referred to its objectives through “less intrusive methods” ― internal affairs to determine whether Sergeant Quon such as “warning Quon that for the month of Sep- was wasting time with personal matters while on tember he was forbidden from using his pager for duty. Internal affairs discovered that, during the personal communications,” “ask[ing] Quon to count month under review, Sergeant Quon sent and re- the characters himself,” or “ask[ing] him to redact ceived 456 personal messages while on duty, some personal messages and grant permission to the De- to his wife, some to his mistress, many sexually ex- partment to review the redacted transcript.” Seven plicit in nature. Sergeant Quon, his wife, and his judges dissented from the denial of rehearing en mistress (collectively, respondents) filed a §1983 banc. action against the City, the Police Department, and others (the “City”), alleging Fourth Amendment viola- The City argues that the Ninth Circuit’s opinion tions. A jury found that the Chief of Police’s purpose “undermines the ‘operational realities of the work- in ordering review of the transcripts was to deter- place’ standard” of O’Connor by “erroneously hold- mine the character limit’s efficacy ing that a police lieutenant’s informal policy creates a reasonable expectation of privacy in text messag- The district court ruled that that was reasonable ing on a police department pager in the face of the under the circumstances, and therefore constitu- Department’s explicit no-privacy policy and potential tional under O’Connor v. Ortega, 480 U.S. 709 disclosure of the messages as public records.” The 2 CYBERCRIME NEWSLETTER JANUARY-FEBRUARY 2010 City further argues that the Ninth Circuit erred in Vonage to revise its disclosures regarding the offer applying a “less intrusive means” test to assess the of “free’ services, money back guarantees and trial reasonableness of the search. The City cites Skin- periods. It requires restitution to eligible consumers ner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, who filed complaints or who file complaints through 629 n.9 (1989), as stating that the Court has the end of February 2010. The investigation of the “repeatedly” rejected the “existence of alternative case was led by the Attorneys General of Connecti- ‘less intrusive’ means” as a basis for evaluating the cut, Illinois, Michigan, Oregon, Pennsylvania, Texas reasonableness of government searches and sei- and Wisconsin. Attorneys General also participating zures. According to the City, the court should in- in the settlement include those of Alabama, Arizona, stead have “balance[ed] [the search’s] intrusion on Arkansas, Florida, Hawaii, Idaho, Indiana, Kansas, the individual’s Fourth Amendment interests against Kentucky, Louisiana, Maine, Missouri, Montana, its promotion of legitimate governmental inter- New Hampshire, New Jersey, New Mexico, North ests” (citation omitted). Respondents assert that Carolina, North Dakota, Ohio, South Carolina, South the Ninth Circuit did not, in fact, adopt a “less intru- Dakota, Tennessee, Vermont, Washington and West sive means” test, but rather held that the search Virginia. “was excessively intrusive in light of the noninvesti- gatory object of the search.” Respondents further contend that O’Connor mandated a “case-by-case” Attorney General Richard Blumenthal of Con- fact- intensive inquiry, which necessarily limits this necticut and Attorney General Jack Conway of Ken- case to its facts, such as the precise authority of tucky requested information from Topix.com, an in- Lieutenant Duke. teractive message board web site based in Califor- nia, concerning its policies for removing abusive posts that violate the web site’s terms of service. Consumers have complained that it is virtually im- ATTORNEYS GENERAL possible to remove false and defamatory posts, in- cluding those targeting children, unless consumers FIGHTING CYBERCRIME pay a $19.99 fee. MULTI-STATE ALABAMA Thirty-two Attorneys General reached a $3 mil- Attorney General Troy King personally appeared lion settlement with Vonage, a large Internet-based in court to accept Richard Dobbins’ plea to 311 phone service provider, which requires the company counts related to production and possession of child to make significant changes to its marketing prac- pornography. Dobbins faces a maximum sentence tices, to honor consumer cancellation requests and of life imprisonment and fines of up to $60,000 for provide refunds to eligible consumers. Vonage for- each count of production of child pornography, and merly paid incentives to customer service represen- up to 10 years imprisonment and fines of up to tatives for retaining or “saving” customers wanting $15,000 for each count of possession of child por- to cancel, but the settlement strictly limits this prac- nography.
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