Labor & Employment Blog

SUPREME COURT GRANTS CERTIORARI TO HEAR CASE INVOLVING EMPLOYEE’S EXPECTATION OF PRIVACY IN TEXT MESSAGES

Posted January 25, 2010

Author: Leigh Anne Yeargan

On December 14, 2009, the United States Supreme Court granted certiorari to a case from the Ninth Circuit Court of Appeals regarding whether a city employee had a reasonable expectation of privacy in text messages sent on a city issued two-way alphanumeric pager.  In Quon v. Arch Wireless Operating Co., 529 F.3d 892 (9th Cir. 2008), the Ninth Circuit Court of Appeals held that the City of Ontario, California violated a police sergeant’s rights under the Fourth Amendment to the United States Constitution by reviewing text messages sent and received by the sergeant.

The city had a written policy regarding computer usage, internet use and emails applicable to all employees that stated employees should have no expectation of privacy or confidentiality when using these resources, and that the city reserved the right to monitor an employee’s use with or without notice.  The policy did not specifically mention text messaging by use of the pagers.

Under the city’s usage contract, each pager was allotted 25,000 characters after which the city was required to pay overage charges.  The practice was for the employee to pay for any overage charges.  The employee responsible for procuring payment for overages informed the other employees that, if they paid the overage charges, the city would not need to audit the messages to determine whether they were work related.  Sergeant Quon exceeded his monthly limit on several occasions resulting in overage charges for which he reimbursed the city.

After Sergeant Quon and another officer again exceeded the usage limit, the city decided to audit the text messages to determine whether the messages were exclusively work related, thereby requiring an increase in the number of characters users were permitted, or if they were using the pagers for personal matters.   The city requested transcripts of the text messages from the service provider who provided them without the consent of the officers.  The transcripts of Sergeant Quoin’s text messages contained personal messages which were often “sexually explicit.”

In holding that the city violated Sergeant Quon’s Fourth Amendment rights, the Ninth Circuit determined that users of text messaging services generally have a reasonable expectation of privacy in text messages stored on the service provider’s network.  The court noted that while it is not reasonable to expect privacy in the information used to “address” a text message (i.e., the name of the recipient), a user does have a reasonable expectation of privacy in the content of the message itself.  The court went on to hold that Sergeant Quon had a reasonable expectation of privacy based on the city’s informal policy that text messages would not be audited if an employee paid for the overage charges.

The court next determined that the city’s search was not reasonable.  Although the city’s purpose of determining the “efficacy of the existing character limits to ensure that officers were not being required to pay for work-related expenses” was a legitimate, work-related purpose, the scope of the city’s search was unreasonable.  The court found that the city could have achieved its objective through less intrusive methods including warning Sergeant Quon that he could not use his pager for a given month for personal messages, and that the city  would review the content of all messages for that month to ensure that the pager was only be using for work-related purposes.

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