Text Messaging & Privacy

A fascinating decision out of the 9th Circuit last week in Quon v. Arch Wireless Operating Company, Inc. The case involved an Ontario, California police sergeant who text messaged a lot (25,000+ characters a month) on his Department pager. The lawsuit started after the Department launched an investigation into the sergeant, discovering that some of the messages were of a sexual nature and involved the sergeant's wife and others.

Of most interest to public safety practitioners, the Court found that while there is no expectation of privacy under the Fourth Amendment in the contents of "To/From" lines in e-mail and text messages, there is an expectation of privacy in the content of the messages. The Court found that the sergeant's expectation of privacy was not altered by City policy that explicitly stated that e-mail and internet use was not private and could be reviewed by the City, citing the "operational reality" that the Department would not review the text of messages unless employees exceeded the 25,000 monthly character limit and refused to pay overage charges. The Court also found the wireless company with which the City contracted, Arch Wireless, liable because under the Stored Communications Act it was an Electronic Communications Service, and as such, could only release messages with the consent of an addressee of the message.

Quon isn't a blanket holding that there's an expectation of privacy in electronic communications that bars governmental employers from reviewing e-mail, text messages, and internet use. Rather, it's best read as a reminder that actions speak louder than words in terms of assessing whether an expectation of privacy is reasonable. Had the lieutenant in the Ontario Police Department in charge of the pager program not told employees that their messages wouldn't be reviewed unless they refused to pay for overage charges, and had the City routinely reviewed the content of electronic communications, the result might well have been different.