Monday, December 14, 2009

Supreme Court Reviews Text Messaging Case

On Monday the U.S. Supreme Court granted review in a matter entitled Quon v. Arch Wireless Operating Co., Inc. 529 F.3d 892 (9th Cir. 2008); review granted City of Ontario, Cal. v. Quon, --- S.Ct. ----, 2009 WL 1146443, (U.S. Dec 14, 2009) (NO. 08-1332). A key issue there is whether an employer has a right to review an employee's text messages. Collecting the briefing, the decisions of the trial court and the holding of the 9th Circuit would result in a huge pile of paper on your desk. But, we'll try to distill this down for blog consumption as follows.

In 2002, Quon and several others employed by the Ontario Police Dept. ("OPD") had their text messages, sent and received on OPD owned/provided pagers, reviewed by their supervisors. Arch wireless had provided transcripts of those text messages. In reviewing those texts (some of which were salacious or sexual in nature), the Dept. claimed to have unearthed wrongdoing on the part of the officers. The officers sued both the dept. and Arch, claiming violation of their 4th Amendment rights, and violation of the Stored Communications Act ("SCA").

By way of some background, the pagers and/or other electronic devices were provided by OPD. OPD also had a written “Computer Usage, Internet and E-mail Policy” that provded that personal use of such resources violated City policy. The department deemed use of the pagers and text messaging to be included within this policy. However, despite the policy, for at least 8 motnhs, the plaintiffs' supervisors apparently decided not to monitor the pager usage, policing the use only so far as to have the employees reimburse the City for any "overage" charges incurred by OPD as a rsult of going over the text limits. Later, when OPD became concerned with the number and frequency of overages, it ordered an audit of the text mesages to determine how much of the texting was done for police business versus personal use. It obtained the content of those texts from Arch, and review of those texts revealed, for example, that Quon sent and received hundreds of personal messages, including many that were sexually explicit.

The 9th Circuit ultimately held that the OPD officers had a "reasonable expectation of privacy" in the text messages, and that the Ontario PD's search of those texts was unreasonable under the circumstances. It also found that Arch Wireless had violated the SCA by turning over the content of the text messages without the prior consent of the officers.

What appears to have been the key in making this determination is the fact that OPD's policy regarding personal use of the pagers was not enforced. Although the Ontario PD had a written policy that said users "should have no expectation of privacy or confidentiality when using" the City's e-mail or other provided resources, it had made it clear that it would only enforce the personal use provisions to the extent that it would ask for reimbursement of the "overage" charges. Thus, this "unwritten policy" of not enforcing this provision, is what gave the employees the "reasonable expectation of privacy".

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