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December 1, 2009

Text Messaging Privacy Case To Be Reviewed At U.S. Supreme Court


The United States Supreme Court will decide whether employees have a reasonable expectation of privacy with respect to text messages they send on employer-owned devices.

The Supreme Court will review the decision of the Ninth Circuit Court of Appeals in Quon, et al. v. Arch Wireless Operating Company, Inc., City of Ontario, et al., in which three police officers and one officer’s wife sued the City, the Police Department, and others because the employer had reviewed text messages (some of which were sexually explicit) which were sent using Department-issued devices. The Court of Appeals ruled that the City and Police Department violated federal and California constitutional rights to privacy by reviewing the text messages.

The Court of Appeals used a two-part analysis of the constitutional claims to find the employer conducted an illegal search and violated the employees’ rights to privacy. The Court determined that the plaintiff employees had a reasonable expectation of privacy in the content of their text messages. In the Court’s view, the scope of the search was not reasonably tailored to promote legitimate governmental interests.

The Court compared text messages to cases involving letters and emails and observed, while “it is not reasonable to expect privacy in the information used to ‘address’ a text message, such as the dialing of a phone number to send a message…users do have a reasonable expectation of privacy in the content of their text messages,” except of course, that they always assume the risk that one of the parties to the communication may voluntarily choose to reveal the content of the message to a third party.

The Court went on to state, “We do not endorse a monolithic view of text message users’ reasonable expectation of privacy, as this is necessarily a context-sensitive inquiry.” In other words, the details matter. The Police Department had established a “Computer Usage, Internet and E-mail Policy” stating users should have no expectation of privacy or confidentiality when using Department technology resources. In fact, the Court acknowledged that, if that were the only policy, and if it had been consistently enforced, the case likely would have had a different result.

The actual evidence showed that the supervising Lieutenant had also verbally communicated an “informal policy” which undermined the written policy. Officers were told their devices would not be audited so long as they agreed to pay for any charges beyond the 25,000 character allotment included in the Department’s monthly service plan. The Court recognized that Officer Quon had exceeded the 25,000 character limit three or four times, and paid for the overages every time without anyone reviewing the content of his messages. In the Court’s view, this demonstrated the Police Department followed its ‘informal policy’ and that Quon reasonably relied on it to form a reasonable expectation of privacy regarding his text messages.

The Court rejected the employer’s argument that the general right to inspect public records under the California Public Records Act negated the officers’ reasonable expectation of privacy regarding their text messages. The Court stated “There is no evidence … suggesting that CPRA requests to the department are so widespread or frequent as to constitute ‘an open atmosphere so open to fellow employees or the public that no expectation of privacy is reasonable.’”

In the second part of the analysis, the Court acknowledged that the stated purpose of the search could legitimately help to ensure officers were not being required to pay for work-related expenses. However, the Court also observed that there were less-intrusive ways to accomplish the same goal. For example, the Court determined that the employer could have warned the officers in advance against using their device for personal texts that month, because the content of their messages would be reviewed in assessing whether existing character limits were sufficient for business use. In the alternative, the Court recognized that the officers would have a financial incentive to truthfully disclose the full extent of their business-related messages to avoid paying for such overages in the future. Thus, the Court found the officers could have simply been asked to redact personal messages and grant permission to the Department to review the redacted transcript.

This case will closely be watched by the labor and employment community, as it will likely impact both public and private employers. While the Fourth Amendment to the U.S. Constitution applies only to governmental action, including that of public employers, the right to privacy under the California Constitution often forms a broader basis for future legal action against both public entities and private businesses.

Technology has rapidly blurred the lines between work and personal life. Many employees are expected to be accessible both on and off the job via employer-provided electronic devices. Employers are justifiably concerned about the potential abuse of company computers, e-mail systems and the internet, and the Supreme Court’s decision in this case may provide needed guidance on the extent in which employers can regulate employees’ use of electronic devices.

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