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Employees Have Right to Privacy in Text Messages, Court of Appeals Rules

  • June 30, 2008

A police officer and the individuals with whom he communicated had a reasonable expectation of privacy in text messages sent from pagers provided by the employer, the U.S. Court of Appeals for the Ninth Circuit has ruled. Quon v. Arch Wireless Operating Co., Inc., No. 07-55282 (9th Cir. June 18, 2008). The employer, it said, violated the plaintiffs' rights under the Fourth Amendment of the U.S. Constitution and the California Constitution by reviewing text messages without the plaintiffs' consent. Accordingly, the court held that the plaintiffs prevailed as a matter of law and reversed the lower court's judgment in favor of the employer. The court also held that Arch Wireless, the pager service provider, had violated the Stored Communications Act ("SCA"), 18 U.S.C. § 2701-2711, when it disclosed messages to individuals who were not the senders or intended recipients. The Ninth Circuit has jurisdiction over Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.

Arch Wireless contracted with the employer, the City of Ontario, California, to provide text-messaging services using pagers. The City distributed the pagers to various employees, including Jeffery Quon, a Sergeant in the Ontario Police Department. The City had no policy that addressed text-messaging using pagers, but it had a general "Computer Usage, Internet, and E-mail Policy" stating that those particular electronic devices were for official business and that employees were to have no expectation of privacy when using those devices.

Quon, along with other employees, signed an "Employee Acknowledgment" which stated that the City reserved the right to "monitor and log all network activity including e-mail and Internet use, with or without notice," and that "[u]sers should have no expectation of privacy or confidentiality when using these resources." Quon also attended a meeting during which police Lieutenant Steve Duke stated that pager messages "were considered e-mail, and that those messages would fall under the City's policy as public information and eligible for auditing."

Under the City's contract with Arch Wireless, each pager was allotted a certain number of characters per month after which the City paid overage charges. Lt. Duke was responsible for administering the contract and requesting payment for overages from employees. Quon exceeded his allotment on several occasions. Lt. Duke told Quon that if he paid the overage charges, his text messages would not be audited for business-relatedness. Quon paid the overage charges.

After the contract has been in effect for several months, Police Chief Lloyd Scharf requested Lt. Duke to ascertain whether so much of the overages were business-related that an increase in character allotment was necessary. Chief Scharf directed Lt. Duke to obtain transcripts of text messages for the employees with overages. After Lt. Duke audited the transcripts provided by Arch Wireless and reported to Chief Scharf, the matter was referred to the City's Internal Affairs agency, which determined that Quon exceeded his monthly character allotment and many of his messages were personal and not business-related.

After learning that their text messages were read by the City, Quon and the other plaintiffs sued the City for violations of their rights to privacy under the Fourth Amendment of the U.S. Constitution and the California Constitution. While the district court ruled that the plaintiffs had a reasonable expectation of privacy in their text messages, it held a trial on the issue of the employer's intent in conducting the search. If the search was to uncover misconduct rather than to determine character allotment overages, it would be a violation of the plaintiffs' privacy rights. The jury found that the employer's intent was to determine character allotment overages, and the court entered judgment in favor of the employer. The plaintiffs appealed.

The Court of Appeals for the Ninth Circuit, addressing whether Quon had a reasonable expectation of privacy in the text messages, held that he did because the City:

  • had a practice of not reviewing the messages if employees paid the overage charges, and
  • did not review Quon's messages even though he exceeded the character allotment several times.

Significantly, the court held that the City's practice trumped its own written policy, its employees' acknowledgements that they had no privacy interest in electronic communications, and its statements in staff meetings that it viewed text messages as e-mail.

Addressing whether the remaining plaintiffs had a reasonable expectation of privacy in the text messages, the appellate court held that they did. It found that text messages were not significantly different from the content of e-mail messages, which have been afforded privacy protections. However, the court held that the plaintiffs had no privacy interest in the address or phone information used to send the messages.

To determine if the search was reasonable, the court evaluated whether the search was "justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Although the appellate court agreed that there were reasonable grounds for conducting the search, it found the scope of the search unreasonable. The court found overbroad the City's review of the actual messages to determine the number of characters used. According to the court, "a host of simple ways to verify the efficacy of the 25,000 character limit . . . [was available] without intruding on the [plaintiffs'] Fourth Amendment rights." For example, the City could have warned Quon that in a subsequent month, he was prohibited from using the pagers for personal communication and that the contents of all of his messages would be reviewed. Alternatively, the City could have asked Quon to count the characters himself, or to redact personal messages and give the City permission to review the redacted transcript. However, because the City reviewed the content of all the messages, the search was excessively intrusive and violated the plaintiffs' Fourth Amendment rights and rights under the California Constitution, the court held.

Addressing the plaintiffs' claim against Arch Wireless under the Stored Communications Act, the court noted that the SCA was intended to prevent providers of communication services from divulging private communications to certain entities or individuals. Under the SCA, a provider may be an "electronic communication service" ("ECS") or a "remote computing service" ("RCS"). An ECS is a service which provides users with the ability to send or receive wire or electronics communications, and an RCS is a computer storage or processing service provided by means of an electronic communications system. An ECS may not divulge the contents of a communication to anyone but the sender and the intended recipient, while an RCS may also release the contents to a "subscriber". The court held that Arch Wireless provided services as an ECS because it enabled users to send and receive messages, any storage service it provided was insufficient to categorize it as an RCS. Thus, when Arch Wireless turned over text message transcripts to the "subscriber", the City, it violated the SCA.

This case underscores that employers' practices must be consistent with their policies. Had the City reviewed the text messages in accordance with its policies and not told employees that the messages would not be reviewed if they paid the overage charges, the City would not have been in violation of its employees' constitutional privacy rights.

This case also illustrates the importance of periodically reviewing policies to ensure that they cover new technologies. If employers introduce the use of a new technology in the workplace, they should require employees to agree to and acknowledge all restrictions and expectations regarding that technology as a condition of use. Finally, employer should consider bringing electronic services inhouse to avoid problems of access.

©2008 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

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