Quon v. Arch Wireless: Ninth Circuit Increases Government Employee Privacy for Electronic Communications

July 14, 2008

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.