Ninth Circuit Opinion Evaluates Privacy Protection for Text Messages
July 17, 2008
A new form of electronic evidence is on the horizon: text messages. Text messages are email-like messages that are shared over cell phones. More and more cell phone users are relying on text messages to communicate. As a result, employers are faced with yet another source of company information that may require monitoring and control. Recently, the Ninth Circuit addressed how text messages will be treated under federal privacy laws.
In
Quon v. Arch Wireless Operating Co., Inc.,
1 the Ninth circuit delineated the degree of privacy protection courts may be expected to accord text messages under the federal Stored Communications Act ("SCA").
2 In a unanimous opinion, a three-judge panel held that under the Stored Communications Act, even when an organization paid for a text messaging service and provided a text messaging device to its employee for work-related use, the organization could not obtain transcripts of the employee’s text messages without the employee’s permission.
Quon also extended federal courts’ analyses of protection for telephone calls, postal mailings, and, to some extent, emails against unreasonable search and seizure under the Fourth Amendment, concluding that under certain circumstances, public employees may reasonably expect the contents of their text messages to remain private. Finally,
Quon held that an organization’s written privacy policies may be trumped when a supervisor informally announces and applies less stringent rules to an employee’s use of the organization’s text messaging service.
Appellant/plaintiff Jeff Quon was police officer for the city of Ontario, California (“the City”). The City contracted with Arch Wireless Operating Co., Inc. (“Arch Wireless”), to supply text messaging pagers and transmission/storage services for certain City employees, among them Quon. Quon used his pager to send non-work-related, sexually explicit messages to two other police department employees and to his wife, none of whom objected to receiving them.
The City’s official policies restricted, and declared non-private, employees’ use of related technologies such as email, though the policies did not specifically address text messaging. But Quon’s supervisor with respect to text messaging told him that the City would not monitor the content of his messages unless he exceeded the contracted usage and then refused to pay the overage charges. Quon consistently exceeded the contracted usage and paid the overages. Despite the supervisor’s promise, the City obtained transcripts of Quon’s text messages from Arch Wireless. Quon sued Arch Wireless and the City, alleging violations under the Stored Communications Act, the U.S. Constitution, and the California Constitution.
The Ninth Circuit panel reversed the district court’s holding that Arch Wireless’s release of the transcripts to the City violated the SCA. The panel determined that Arch Wireless was an “electronic communication service” rather than a “remote computing service.” Under the SCA, an electronic communications service may release the content of users’ communications to subscribers; remote computing services may not.
The Ninth Circuit also considered whether Quon and his correspondents could have reasonably expected that their text messages would remain private.
3 The panel approached the analysis under Fourth Amendment precedents governing citizens’ protection against unreasonable government search and seizure because the City of Ontario is a government employer.
4
The panel held that the contents of text messages are like the contents of postal mailings and telephone calls, so “users do have a reasonable expectation of privacy in the content of their text messages vis-à-vis the service provider.” But Quon escaped the reach of the City’s written policies because his supervisor had articulated the informal policy that the content of Quon’s text messages would not be audited so long as he paid the overages. The panel found that Quon’s compliance with this informal policy “rendered Quon’s expectation of privacy in those messages reasonable.”
The panel affirmed the district court’s holding that the search the City conducted was not reasonable because “there were a host of simple ways to verify the efficacy of the 25,000 character limit (if that, indeed, was the intended purpose) without intruding on Appellant’s Fourth Amendment rights.”
5
1
Quon v. Arch Wireless Operating Co., Inc., 2008 WL 2440559, --- F.3d ---- (9th Cir. (Cal. June 18, 2008) (Pregerson, J., Wardlaw, J., and Leighton, District Judge (Hon. Ronald B. Leighton, United States District Judge for the Western District of Washington, sitting by designation); opinion by Justice Wardlaw.
2 18 U.S.C. §§ 2701-2711 (“Stored Wire and Electronic Communications and Transactional Records Access”).
Quon at 1.
3 Neither Quon nor the correspondents had communicated the messages to anyone nor given consent to their disclosure to the City.
4 Quon also appealed his claim under Article 1, Section 1 of the California Constitution, but the panel folded this issue into its Fourth Amendment analysis because “[t]he ‘privacy’ protected by [the California Constitution] is no broader in the area of search and seizure than the ‘privacy’ protected by the Fourth Amendment…” (citing
Hill v. Nat’l Collegiate Ath. Ass’n, 7 Cal.4th 1, 20 n. 9 (Cal. 1994).
Quon at 9.
5 The search was reasonable at its inception, but not in its scope. The panel specified a number of less-intrusive possibilities including asking Quon to count the characters himself and asking him to redact personal messages,§ then grant permission to review the redacted transcript. The panel also upheld the district court’s finding that the police chief was entitled to qualified immunity but not statutory immunity.
Quon at 15-16.
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