Metropolitan News-Enterprise


Thursday, June 19, 2008


Page 1


Court Recognizes Privacy Expectation in Text Message Contents


By STEVEN M. ELLIS, Staff Writer


Users of text-messaging services have a reasonable expectation of privacy in the contents of copies of messages the service provider stores on its network, the Ninth U.S. Circuit Court of Appeals held yesterday.

A three-judge panel ruled unanimously that the Ontario Police Department violated the Fourth Amendment rights of one of its officers and three others with whom he had exchanged text messages on a department-issued pager when it obtained transcripts of the messages from the service provider and reviewed their contents in order to determine whether a monthly overage charge resulted from personal use.

The officer—Jeff Quon—and the three others—Quon’s wife, another officer and a dispatcher—brought the federal civil rights suit against the department and the City of Ontario in the U.S. District Court for the Central District of California alleging that the department violated the Fourth Amendment, as well as their right to privacy under Art. I, Sec. 1 of the California Constitution, when it reviewed the messages in 2002.

City Contract

The city had contracted with Arch Wireless Operating Company Inc. the previous year to provide wireless text-messaging services, which could be sent to or from two-way pagers issued by the city. Each message to or from a user was first relayed to Arch Wireless’ network and a copy archived on a server before the message was relayed to the recipient.

City employees given pagers were required to acknowledge a general city policy on computer and Internet usage prohibiting personal use and advising users that they had no expectation of privacy. However, in the absence of an official city policy relating specifically to pager use, the department developed an informal policy by which employees who exceeded the monthly allotted 25,000 characters were required to pay for any overage charges.

Quon exceeded the monthly limit a number of times, and each time the lieutenant in charge of overseeing the department’s pager use advised him that the department would audit his messages for any personal unless Quon paid the overage charge, which he did.

Lieutenant’s Complaint

However, when Quon and another officer again exceeded the limit in August of 2002, the lieutenant let it be known at a meeting that he was tired of serving as bill collector, and the chief ordered the lieutenant to request transcripts of the pagers for auditing purposes, asking him to determine whether the messages were exclusively work related and whether the monthly limit needed to be increased.

City officials could not access the messages directly, so they emailed a request for the transcripts to a representative of Arch Wireless who, despite noticing that some of the messages were sexually explicit, provided them to the city. After the chief and another officer reviewed the transcripts, the department referred the matter to its internal affairs department to determine whether Quon was wasting city time by not doing his work.

U.S. District Judge Stephen G. Larson of the Central District of California agreed with the plaintiffs that they had a reasonable expectation of privacy in the messages as a matter of law, that the chief was not entitled to qualified immunity on the Fourth Amendment claim, and that the city and the department were not entitled to statutory immunity on the state constitutional privacy claim.

Turning to the reasonableness of the search itself, however, Larson found that a material issue of fact existed whether the chief’s motivation for the search was to uncover misconduct or determine the efficacy of the character limit. He held a trial on the issue, at which a jury determined that the chief’s intent was the latter of the two, and all defendants were absolved of liability for the search.

On appeal, the Ninth Circuit affirmed Larson’s ruling that the plaintiffs had a reasonable expectation of privacy in the messages.

Writing for the court, Judge Kim McLane Wardlaw opined, based on Ninth Circuit and U.S. Supreme Court precedent, that the routing information of text messages carry no such expectation, but that the contents do based on previously recognized expectations of privacy in written communications such as letters, and in being able to speak in a phone booth free from electronic listening devices.

She noted that the three others had a reasonable expectation that the department would not review their messages absent consent from either the sender or recipient, and concluded that Quon had a similar expectation given his reliance—by paying the overage charges—on the department’s informal policy.

However, Wardlaw then concluded—despite the jury’s verdict as to the chief’s intent—that the measures adopted were not reasonable related to the objectives and were excessively intrusive in light of the conduct at issue, pointing out that the department could have instead warned Quon that it would be prospectively reviewing his messages for personal use, or first given him the transcripts to identify and redact personal messages.

She also reversed Larson’s ruling that the chief was entitled to qualified immunity, given the lack of clearly established law regarding a privacy expectation in text messages, but agreed with the district court that the city and department were not entitled to statutory immunity under Government Code Sec. 821.6 because the chief’s investigation never could have led to a judicial or administrative proceeding as a result of the informal policy permitting personal pager use.

In a separate portion of the opinion, Wardlaw also concluded that Arch Wireless had violated the federal Stored Communications Act by providing the transcripts to the department.

Larson had ruled that Arch Wireless was a “remote computing service” under the act, exempting it from liability, but Wardlaw write that the company was instead an “electronic communication service”—making it liable as a matter of law—because its mere storage of emails for backup protection was not sufficient to show the company had provided the city with “computer storage” or “processing services.”

Judge Harry Pregerson and U.S. District Judge Ronald B. Leighton of the Western District of Washington, sitting by designation, joined Wardlaw in her opinion.

The case is Quon v. Arch Wireless Operating Company, Inc., 07-55282.


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