Employment Law | Expert Legal Commentary

November 14, 2008

Quon v. Arch Wireless: 9th Circuit Recognizes Privacy Expectation in Text Messages

Quon v. Arch Wireless

By Jeremy J. Gray of Zuber & Taillieu

Quon v. Arch Wireless: 9th Circuit Recognizes Privacy Expectation in Text Messages

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In Quon v. Arch Wireless, 529 F.3d 892 (9th Cir. 2008). the Ninth Circuit partly reversed the District Court and ruled that the Ontario, California Police Department violated the Fourth Amendment rights of one of its officers and three others with whom he exchanged text messages on a department-issued pager when it obtained and read transcripts of the messages. The court also held that Arch Wireless, the city's service provider, violated the Stored Communications Act, 18 U.S.C. sections 2701-2711, when it disclosed the messages to individuals who were neither the addressees nor intended recipients.

Background

In 2001, Sergeant Jeff Quon received a pager from his employer, the Ontario Police Department. City employees who received pagers were required to acknowledge a general city policy on computer and Internet use prohibiting personal use and advising users that they had no expectation of privacy.

Pursuant to the city’s contract with Arch Wireless, the wireless text-messaging service provider for the pagers, the city was required to pay overage charges for pagers exceeding 25,000 characters of text messaging per month. The city did not have an official, specific city policy regarding text messaging and pager use. However, the lieutenant who oversaw the police department’s pager use consistently informed employees who exceeded the monthly character allotment that had to pay for the overage charges themselves or the department may audit the messages for any personal use.

Quon exceeded the monthly limit several times and, each time, he paid the overage charge. But in August 2002, when Quon once again exceeded the limit, the in-charge lieutenant claimed he was tired of serving as bill collector. The chief requested the transcripts of the pagers from Arch Wireless for auditing purposes, ostensibly to determine whether the messages were exclusively work-related and whether the monthly limit should be increased as a result.

Although Arch Wireless recognized that some of the requested transcripts were sexually explicit (and therefore obviously personal), it provided the transcripts to the department anyway, where the chief and at least two others reviewed them. The Chief referred the matter to internal affairs to determine whether Quon was wasting city time.

The District Court’s decision: The Motive for the Search Made it Reasonable

Quon and the other plaintiffs—several recipients of the text messages—brought suit in the Central District of California, alleging that: 1) the Police Department and the City employees who reviewed the text messages violated their rights under the Fourth Amendment of the U.S. Constitution and similar provisions of the California Constitution; and 2) Arch Wireless violated the Stored Communications Act, 18 U.S.C. sections 2701-2711.

The District Court determined that to prove a Fourth Amendment violation, plaintiffs had to show: 1) a reasonable expectation of privacy in the text messages; and 2) that the government’s search and seizure was unreasonable under the circumstances. The Court agreed with the plaintiffs that they did have a reasonable expectation of privacy in the text messages, due to the informal policy that the pagers would not be audited so long as employees paid the overage charges. The court then held that the question of whether the search was reasonable was a question of fact for a jury—the trial jury determined that the chief’s intent was to determine the efficacy of the 25,000 character limit, which constituted a reasonable search, therefore absolving all defendants of liability.

9th Circuit: Search Not Reasonable as Less Intrusive Measures were Available

On appeal the Ninth Circuit affirmed the District Court’s finding that the plaintiffs did have a reasonable expectation of privacy in the messages due to the specific facts of this case—the informal policy adopted by the department. 529 F.3d at 906-907. The Court held that the California Public Records Act (CPRA), which makes public records open for inspection at all times, diminished Quon’s reasonable expectation of privacy in this case, with these facts. Id. at 907. The Court was clear that the routing information for text messages—like the routing information (to/from information) for electronic mail—carries no expectation of privacy. The content of those messages might, however, given the facts of each case. Id. at 905 - 906.

The Ninth Circuit reversed the lower court’s ultimate holding as to the reasonableness of the search. The court acknowledged the jury’s finding that the search was conducted for the noninvestigatory work-related purpose of determining the efficacy of the 25,000-character limit. The district court had determined that there were no less intrusive means of meeting that purpose than the search conducted, thus upholding the search as reasonable. The Ninth Circuit disagreed. Id. at 908.

Specifically, the court determined that while the purpose of the search was reasonable, its scope was not reasonable because less intrusive methods of conducting the search were available, such as advance warnings to Quon or enabling Quon to redact transcript messages before they were reviewed. Id. at 908 - 909.

The Ninth Circuit also reversed the District Court as to the chief’s immunity—the Circuit Court determined that the chief was entitled to qualified immunity because at the time of the search, there was no clearly established law regarding the employees’ reasonable expectation of privacy in text messages. Id. at 910. However, the Ninth Circuit agreed with the District Court that the City and Department were not shielded by statutory immunity because the search could not have uncovered any misconduct leading to a judicial or administrative proceeding. Id.

Arch Wireless violated the SCA

The Ninth Circuit made the further determination that Arch Wireless violated the SCA when it knowingly turned over the text message transcripts to the City. The analysis came down to whether Arch Wireless was an “electronic communication service” (“ECS”) or a “remote computing service” (“RCS”). 529 F.3d at 900 - 901. Under the SCA, an ECS, which enables users to send or receive wire or electronic messages, may divulge the contents of a communication only to the sender and recipient. An RCS, a computer storage or processing service, may also release the contents to a “subscriber.” Because Arch Wireless enabled users to send and receive messages, it is an ECS, so its provision of transcripts to the City (which was neither a sender nor recipient, just the “subscriber”) violated the SCA. Id. at 903.

Implications of the Quon holding for Employers

There is a chance that the Quon holding could spawn a new line of employee lawsuits, and not just about text messaging. The Quon holding could be extended to employees’ electronic mail—that the routing information for the e-mail has no expectation of privacy, but that, in some specific circumstances, the employee may rightly claim a reasonable expectation of privacy in the content of the emails.

The main lesson for employers is to develop a clear, specific, known policy and stick to it. The death knell for the City in Quon was that its officer-in-charge developed an informal policy on the specific issue that contradicted the formal but more general policy. The specific and consistently enforced informal policy developed by an employee who otherwise had no rulemaking authority carried the day in Quon—other employers would do well to monitor and control such situations. Moreover, it may be prudent to identify (in the service provider contract and employment policies and contracts) the employer as an “addressee/ sender/ recipient” of all messages and emails sent or received using employer property.