Employment Law Updates | New Judicial Opinions

November 14, 2008

Ninth Circuit: Disclosure of an Employee's Private Text Messages to His Employer Unlawful

Quon et al. v. Arch Wireless et al.
No. 07-55282, U.S. Court of Appeals for the Ninth Circuit, 6/18/2008

Ninth Circuit: Disclosure of an Employee's Private Text Messages to His Employer Unlawful

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Holding:

In a decision that provides a lesson on employer's efforts to access their employees' electronic communications, the U.S. Court of Appeals for the Ninth Circuit held that a communications service provider, like Arch Wireless, is not permitted to release the contents of messages stored on its service to a mere subscriber, such as the City of Ontario, but could divulge those messages only to an addressee or intended recipient of those messages. This case arose after defendant-appellee Arch Wireless disclosed the content of the text messages of certain employees in an internal audit conducted by the City, which as the subscriber provided the two-way pagers to its employees. The U.S. District Court for the Central District of California ruled for Arch Wireless and the City, holding that Arch Wireless did not violate the Stored Communications Act of 1986 ("SCA") and that the City and its officials did not violate the Fourth Amendment to the U.S. Constitution, which prohibits unreasonable searches and seizures. On appeal, the Ninth Circuit reversed. In particular, the Ninth Circuit found as a matter of law that Arch Wireless’s unauthorized disclosure of the contents of a City employee's text messages to the City was unlawful under the SCA. Although the Ninth Circuit accepted the jury’s conclusion that the search was intended to determine the limits of employees' use of their pagers, the Ninth Circuit also found that the City could have achieved that purpose by less intrusive means, rendering the seizure and reading of the text messages unreasonable. Accordingly, the Ninth Circuit found that the search violated the employees' Fourth Amendment rights and the plaintiffs’ privacy rights under the California Constitution.

Detailed Summary:

This case arose from the defendant-appellee Ontario Police Department’s review of text messages sent and received by plaintiff-appellant Jeff Quon, a Sergeant and member of the City of Ontario’s SWAT team.

The issue in this case is whether (1) Arch Wireless Operating Company Inc., the company with whom the City contracted for text messaging services, violated the SCA, 18 U.S.C. §§ 2701-2711 (1986); and (2) whether the City, the Ontario Police Department (“OPD”), and Ontario Police Chief Lloyd Scharf violated Quon’s rights and the rights of those with whom he “texted”—Sergeant Steve Trujillo, Dispatcher April Florio, and his wife Jerilyn Quon—under the Fourth Amendment to the United States Constitution and Article I, Section 1 of the California Constitution. Id., pp. 7001-7002.

On October 24, 2001, Arch Wireless (“Arch Wireless”) contracted to provide wireless text-messaging services for the City of Ontario. The City received twenty two-way alphanumeric pagers, which it distributed to its employees, including Quon and Trujillo, in late 2001 or early 2002.

The City had no official policy directed to text-messaging by use of the pagers. However, the City did have a general “Computer Usage, Internet and E-mail Policy” (the “Policy”) applicable to all employees. The Policy stated that “[t]he use of City-owned computers and all associated equipment, software, programs, networks, Internet, e-mail and other systems operating on these computers is limited to City of Ontario related business. The use of these tools for personal benefit is a significant violation of City of Ontario Policy.” Id., p. 7003.

In 2000, before the City acquired the pagers, both Quon and Trujillo had signed an “Employee Acknowledgment,” which borrowed language from the general Policy, indicating that they had “read and fully understand the City of Ontario’s Computer Usage, Internet and E-mail policy.” Id., p. 7004.

Although the City had no official policy expressly governing use of the pagers, the City did have an informal policy governing their use. Under the City’s contract with Arch Wireless, each pager was allotted 25,000 characters, after which the City was required to pay overage charges. Id.

The filing of the suit before the district court after the OPD conducted an internal affairs investigation into text messages sent by Quon to Trujillo, Dispatcher April Florio, and Quon’s wife, Jerilyn Quon, using the pager issued by the Department. The volume of messages sent from Quon’s pager exceeded the service provider’s limit of 25,000 characters per pager per month, causing the City to incur overage charges. The City billed those charges to Quon and other individual employees who had exceeded the character limit.

In response to a complaint from the police lieutenant in charge of collecting overages, Scharf ordered an audit of OPD members’ pager usage to determine whether the excess use were incurred for official business. The contents of employees’ text messages were stored on the server of Arch Wireless. After receiving an email request from the City, Arch Wireless turned over transcripts of the text messages sent by certain employees, including Sergeant Quon, to the City.The internal affairs review of the transcripts disclosed that many of the messages were non-work-related, including messages that were personal in nature and were often sexually explicit. Id., p. 7007.

In their second amended complaint, plaintiffs-appellants alleged, inter alia, violations of the SCA and the Fourth Amendment. Relying on O’Connor v. Ortega, 480 U.S. 709, 715, 725-26 (1987), the district court determined that to prove a Fourth Amendment violation, the plaintiff must show that he had a reasonable expectation of privacy in his text messages, and that the government’s search or seizure was unreasonable under the circumstances. Id., p. 7009.

The district court held that, in light of a police lieutenant’s informal policy that he would not audit a pager if the user paid the overage charges, plaintiffs-appellants had a reasonable expectation of privacy in their text messages as a matter of law. Regarding the reasonableness of the search, the district court found that whether Chief Scharf’s intent was to uncover misconduct or to determine the efficacy of the 25,000 character limit was a genuine issue of material fact. If it was the former, the search was unreasonable; if it was the latter, the search was reasonable. Id.

Concluding that Chief Scharf was not entitled to qualified immunity on the Fourth Amendment claim, and that the City and the OPD were not entitled to statutory immunity on the California constitutional privacy claim, the district court held a jury trial on the single issue of Chief Scharf’s intent. The jury found that Chief Scharf’s intent was to determine the efficacy of the character limit. Therefore, all defendants were absolved of liability for the search. Id.

By way of background, Congress passed the SCA in 1986 as part of the Electronic Communications Privacy Act. The SCA was enacted because the advent of the Internet presented a host of potential privacy breaches that the Fourth Amendment does not address. Id., p. 7010, referring to Orin S. Kerr, A User’s Guide to the Stored Communications Act, and a Legislator’s Guide to Amending It, 72 GEO. WASH. L. REV. 1208, 1209-13 (2004). Generally, the SCA prevents “providers” of communication services from divulging private communications to certain entities and/or individuals. Id. at 1213. Plaintiffs-appellants challenged the district court’s finding that Arch Wireless is a “remote computing service” (“RCS”) as opposed to an “electronic communication service” (“ECS”) under the SCA, §§ 2701-2711. Id. The district court correctly concluded that if Arch Wireless is an ECS, it is liable as a matter of law, and that if it is an RCS, it is not liable. However, the Ninth Circuit disagreed with the district court that Arch Wireless acted as an RCS for the City. Id.

The Ninth Circuit agreed with the district court that the OPD’s informal policy that the text messages would not be audited if he paid the overages rendered Quon’s expectation of privacy in those messages reasonable. Id., pp. 7021-7022. It added that the Fourth Amendment utilizes a reasonableness standard. Although the fact that a hypothetical member of the public may request Quon’s text messages might slightly diminish his expectation of privacy in the messages, it does not make his belief in the privacy of the text messages objectively unreasonable. Id., citing Zaffuto v. City of Hammond, 308 F.3d 485, 489 (5th Cir. 2002).

Given that plaintiffs-appellants had a reasonable expectation of privacy in their text messages, the Ninth Circuit then determined that the search was unreasonable. Id. 7025. There were a host of simple ways to verify the efficacy of the 25,000 character limit (if that, indeed, was the intended purpose) without intruding on plaitiffs-appellants’ Fourth Amendment rights. Id., p. 7026. What the OPD did was excessively intrusive in light of the noninvestigatory object of the search. Because plaintiffs-appellants had a reasonable expectation of privacy in those messages, the search violated their Fourth Amendment rights.

Nevertheless, the Ninth Circuit agreed with Chief Scharf’s contention that, at the time of the search, there was no clearly established law regarding whether users of text-messages that are archived, however temporarily, by the service provider have a reasonable expectation of privacy in those messages. Therefore, Chief Scharf was entitled to qualified immunity. Id., p. 7028.

On the other hand, the City and the OPD was not shielded by statutory immunity. In light of the foregoing conclusions, the Ninth Circuit affirmed in part, reversed in part, and remanded to the district court for further proceedings on plaintiffs-appellants’ SCA claim against Arch Wireless, and their claims against the City, the OPD, and Glenn under the Fourth Amendment and California Constitution.

View a PDF of the judicial opinion