Metropolitan News-Enterprise


Tuesday, December 15, 2009


Page 1


U.S. High Court to Consider Right to Privacy for Text Messages


By a MetNews Staff Writer


The U.S. Supreme Court yesterday agreed to decide whether 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.

In a brief order, the justices granted certiorari in City of Ontario v. Quon and USA Mobility Wireless v. Quon, 08-1332 and 08-1472. The Ninth U.S. Circuit Court of Appeals ruled last year in those cases 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.

The panel rejected the city’s contention that its written policy declaring that members of the police SWAT team had no expectation of privacy in their pager messages, similar to policies in effect in other departments, was determinative of the issue. The city, the wireless company, the League of California Cities and the California State Association of Counties all urged the high court to take the case.

SWAT Officer Jeff Quon and the other plaintiffs—his wife, another officer and a dispatcher—sued the department and the city 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.

The city had 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.

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 use unless Quon paid the overage charge, which he did.

However, when Quon and another officer again exceeded the limit in August 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.

E-Mail Request

City officials could not access the messages directly, so they e-mailed 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, who has since resigned to join a Los Angeles law firm, agreed with the plaintiffs that they had a reasonable expectation of privacy in the messages as a matter of law. He also concluded 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.

Jury Trial

Following trial, a jury found that the chief’s intent in authorizing the search was to determine the efficacy of the character limit rather than to uncover misconduct. All defendants were absolved of liability pursuant to that finding, but the Ninth Circuit reversed.

Judge Kim M. Wardlaw, writing for the panel, agreed that the plaintiffs had a reasonable expectation of privacy, and went on to conclude that—regardless of the chief’s intent—the measures adopted were not reasonably related to the objectives and were excessively intrusive in light of the conduct at issue.

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, the judge explained.

Wardlaw analogized text messages to written communications such as letters, and to phone calls from public telephones, in which callers have been held to have a reasonable expectation that they will not be subjected to electronic eavesdropping.

The panel also reversed Larson’s ruling that the chief was entitled to qualified immunity, saying there was clearly established law upholding the plaintiff’s privacy expectation. The court upheld the determination 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 concluded that Arch Wireless had violated the federal Stored Communications Act by providing the transcripts to the department.

Seven judges dissented from the Ninth Circuit’s denial of en banc rehearing. Judge Sandra Ikuta’s opinion was joined by Judges Diarmuid O’Scannlain, Andrew Kleinfeld, Richard Tallman, Consuelo Callahan, Carlos Bea and N. Randy Smith.

Ikuta—focusing on Quon’s position on the department’s SWAT team, and his receipt of the pager in that context—said the panel undermined the standard established by the Supreme Court in O’Connor v. Ortega (1987) 480 U.S. 709 to evaluate the legitimacy of non-investigatory searches in the workplace, and had, in doing so, “improperly hobble[d] government employers from managing their workforces.”

Under O’Connor, courts must consider the “operational realities of the workplace” when determining whether an expectation of privacy is reasonable, and a public employer may conduct searches of employees only if reasonable “under all the circumstances.”

Ikuta opined that the realities of Quon’s position—and his status as a public employee—left a “significantly diminished or non-existent” privacy interest.

The judge further accused the three-judge panel of adopting a “least intrusive means” test for “special needs” searches by examining what the department could have instead done, and wrote that such a decision conflicted not only with Supreme Court precedent, but also the decisions of seven other circuit courts.


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