Ars Technical has a great write up of some of the uncertainty of the 4th amendment (protection against unreasonable search and seizure) when it comes to your data in the cloud. The first test case for the Supreme Court of this is actually going to be around text messages.
But what may be just as telling as the forthcoming Quon decision itself is the way in which the Justices attempted to wrap their heads around the technology during oral arguments. For example, Justice Anthony Kennedy asked what happens if a text is sent at the same time that one is being received. Justice Antonin Scalia and Chief Justice John Roberts expressed surprise that the text was routed through the service provider and did not go directly from person to person.
“Could Quon print these—these spicy conversations out and circulate them among his buddies?” Scalia also asked. And even the lawyer representing Officer Quon was not sure whether deleting a message on a pager would also delete it from the service provider’s records. This might paint a worrisome picture of a judiciary that will be making important technology-related decisions with only a limited understanding of that technology.
It’s also interesting that protection to voice communication wasn’t extended until 1967 when a court case around wiretapping phone booths came to the Supreme Court.