The U.S. Court of Appeals for the Ninth Circuit recently issued a decision
that limits a public employer’s ability to search employee e-mails and text
messages that are sent using public property. In Quon v. Arch Wireless,
No. 07-55282, (9th Cir. June 18, 2008) the Court held that a communications
service provider violated the federal Stored Communications Act when it turned
over employee text messages sent using city-owned pagers to the city, and the
city police department violated the Fourth Amendment rights of the employees
when it audited the messages.
The city of Ontario, California, and its police department had a service
contract with Arch Wireless for pagers, which were issued to city police officers.
The contract limited the number of characters that could be sent from a given
pager each month. The officers using the pagers signed a letter of
acknowledgement regarding the city’s e-mail and computer usage policy, which
provided that access to email was not confidential and that the city reserved
the right to monitor activity. The officers were also informed in a meeting that
text messages were considered e-mail and could therefore be audited. However,
the Department also had an informal practice of allowing officers who exceeded
their monthly limits to pay the overage charges with the understanding that the
city would not review the messages to determine whether they were work related.
Following several monthly overages by certain officers, the city police chief
initiated an internal affairs investigation. At the city’s request, Arch
Wireless turned over the transcripts of all of the officers’ text messages to
the city. The officers sued Arch Wireless and the city when their supervisors
began reviewing the messages.
The Ninth Circuit found that Arch Wireless violated the Stored Communications
Act, which prevents providers of communication services from divulging private
communications to certain entities or individuals. Liability turned on whether
Arch was an “electronic communication service,” which could divulge the messages
to the addressee or intended recipient of the message or a “remote computing
service,” which could also release information with the consent of the
subscriber. The Court held that Arch Wireless was an “electronic communication
service” because it provided users the ability to send and receive wire or
electronic communications. By releasing the text messages to the subscriber (the
city of Ontario) without the permission of the addressee or recipient, the
service provider violated the Stored Communications Act as a matter of law.
The Court also found that the city violated the officers’ Fourth Amendment
rights because the city, a government entity, conducted a search that was
unreasonable. The officers had a reasonable expectation of privacy despite their
acknowledgement of the City’s computer usage policy because of the informal
policy in effect at the time of the search. The court noted that if not for the
informal policy, the employees’ acknowledgement of the computer usage policy and
the meeting where supervisors clarified the policy would have been sufficient to
remove the employees’ expectation of privacy. However, since the “operational
reality” was that the Department followed its informal policy, it was reasonable
for the officers to rely on it, and unreasonable for the text messages to be
audited without warning. It was irrelevant that the supervisor administering the
informal policy was not an official policymaker for the City. The Court also
noted that the audit of the text messages could have been done in a more
reasonable manner, for example by telling the officers that the informal policy
was no longer in effect and auditing the following month’s messages.
McGuireWoods has extensive experience advising companies involved in
government investigations and litigation, and assisting companies who have
concerns about employment and privacy issues. If you have questions, please
contact the authors.