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Ninth Circuit Recognizes Privacy Protections For Public Employee Text Messages

Volume 7, Issue 8
August 14, 2008

Recently, in Quon v. Arch Wireless Operating Company, Inc., the United States Court of Appeals for the Ninth Circuit ruled that government employees may have a constitutional right to privacy in text messages transmitted using government-owned communication devices. The Court held that a communications service provider violated the Stored Communications Act when it provided a city government with the transcripts of text messages sent via city-owned pagers and that the city's police department violated the Fourth Amendment by auditing and reviewing employees' text messages.

The City of Ontario contracted with Arch Wireless to provide two-way pagers to the police department's S.W.A.T. team, which included the plaintiff. The contract limited use of the pagers to 25,000 characters per month and charged an overage fee for any use exceeding that number of characters. Employees were required to sign a letter of acknowledgement regarding the City's e-mail, internet and computer usage policy, which stated that the City had the right to monitor and log all network activity, including e-mail and internet use, with or without notice, and that users should have no expectation of privacy or confidentiality in these resources. While the policy did not reference text messages, the plaintiff attended a meeting during which he was instructed that text messages on the two-way pagers would be considered e-mail.

Despite this policy, the actual practice of one of the department's lieutenants charged with collecting the overage fee from the officers who exceeded the character limit was to forego the auditing of any text messages as long as the officer paid the overage fee. Indeed, on at least three or four occasions, the plaintiff exceeded the character limit, but did not have his text messages, many of which were sexually explicit, audited as a result of the lieutenant's informal practice.

The City audited the text messages to determine whether the overage fees were the result of legitimate business use that required an increase to the number of characters allowed each month. The City requested and Arch Wireless provided the transcripts of the text messages stored by Arch Wireless. The plaintiff sued Arch Wireless for violation of the Stored Communications Act and the City for violation of the Fourth Amendment.

In ruling in the employee's favor, the Court noted that the City's e-mail, internet and computer usage policy, as well as the meeting indicating that the policy would be applied to the pagers, may have been sufficient to abrogate any expectation of privacy in the text messages. Nevertheless, the Court ultimately held that the plaintiff's reasonable reliance upon the informal practice of the lieutenant created an expectation of privacy. The Court determined, therefore, that it was unreasonable for the City to audit the text messages without prior warning to the officer. Notably, the Court ignored the fact that the lieutenant was not one of the City's policymakers.

The Court pointed out that the City had other options for verifying the effectiveness of the character limit without violating the Fourth Amendment. For example, the City could have forewarned the plaintiff against future personal use of the pager and that the contents of the text messages would be reviewed. Alternatively, the City could have asked for the plaintiff's consent to review the messages.

While the Court's decision specifically applies to public employers, whose policies and actions are subject to constitutional scrutiny, it serves as an important reminder to all employers to ensure that policies are regularly updated and followed by supervisors. Both private and public employers need to ensure that their technology policies and practices clearly and consistently notify employees that as they use the host of communication devices provided to them at work they are using employer property which is subject to monitoring and/or auditing and in which they should have no expectation of privacy.

The Ninth Circuit Court's full opinion, published at 529 F.3d 892, can be located by clicking here www.kzalaw.com/engine/file_writing/file_uploads/4Mu0K4pDqgYxQxC8.pdf

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