Ninth Circuit on Text-Messaging Privacy

Last week, the U.S. Court of Appeals for the Ninth Circuit decided a case that deals with the privacy, or lack of privacy, in text messages sent via a pager. Quon v. Arch Wireless Operating Co., Inc. 2008 WL 2440559 (9th Cir. 2008).

The Ninth Circuit docket number is 07-55282; you can use it to find the opinion here. Click on the “opinions” button you’ll see at the top of the page, left-hand side, and use the docket number or the case name to find the opinion.

Last January I did a post on the district court’s decision in the case, so this is a follow-up to that one.

Here’s how the case arose: In 2001, the City of Ontario contracted with Arch Wireless (AW) to provide wireless text-messaging services for the Police Department (OPD), among other city agencies. The OPD received “twenty-two alphanumeric pagers,” one of which it gave to Sergeant Quon, a member of the SWAT team. Quon v. Arch Wireless, supra. Messages sent via the pager went through AW receiving stations to its network where it went to a server; the server archived a copy of the message and stored it in the system until “the recipient pager” was “read to receive” the message. Quon v. Arch Wireless, supra.

Neither the City nor the OPD had a policy governing text-messaging via the pagers. The City had a “`general Computer Usage’” policy which stated that (i) personal use of email, networks, etc. was a violation of City policy; the City reserved the right to monitor use of its computer systems; (iii) users had “no expectation of privacy or confidentiality when using these resources”; and (iv) the use of “inappropriate” or “suggesting” language would “not be tolerated.” Quon v. Arch Wireless, supra. Before the City and OPD got the pagers, Quon had signed an “employee acknowledgment” which essentially reiterated the policy outlined above. Quon v. Arch Wireless, supra.

While the City didn’t have an official pager policy, it had “an informal policy governing their use.” Quon v. Arch Wireless, supra.

Under the City's contract with (AW) each pager was allotted 25,000 characters, after which the City was required to pay overage charges. Lieutenant Duke `was in charge of the purchasing contract and responsible for procuring payment for overages. He stated that `t]he practice was, if there was overage, that the employee would pay for the overage that the City had. . . . [W]e would usually call the employee and say, “Hey, look, you're over X amount of characters. It comes out to X amount of dollars. Can you write me a check for your overage[?]”’

Quon v. Arch Wireless, supra. And that is apparently how things worked, At one point Duke had a conversation with Quon which, of course, both remembered differently. Duke remembered that he told Quon text-messages sent via the pagers could be audited under the City’s public records policy. Quon remembered the conversation this way:

When asked `if he ever recalled a discussion with Lieutenant Duke that if his text-pager went over, his messages would be audited . . . Sergeant Quon said, “No. In fact he . . . said . . . if you don't want us to read it, pay the overage fee.’ “

Quon went over the monthly character limit `three or four times’ and paid the City for the overages. Each time, `Lieutenant Duke would come and tell [him] that[he] owed X amount of dollars because [he] went over [his] allotted characters.’ Each of those times, Quon paid the City for the overages.

Quon v. Arch Wireless, supra.

In August, 2002, Quon and another officer exceeded their character limit and Duke let his superiors know he was “tired of being a bill collector.” Quon v. Arch Wireless, supra. The Chief ordered Duke to request the transcripts of the messages sent via the pagers to determine if they were “`exclusively work related, thereby requiring an increase in the number of characters officers were permitted”’. Quon v. Arch Wireless, supra.

Duke contacted an AW representative who eventually sent him the transcripts. A review of Quon’s messages showed that he had exceeded his monthly allotment of characters by 15,158 characters “and that many of these messages were personal in nature and were often sexually explicit.” Quon v. Arch Wireless, supra. The Chief referred the matter to the OPD department of internal affairs to could determine if “`someone was wasting . . . City time not doing work when they should be.” Quon v. Arch Wireless, supra.

I don’t know what, if anything, happened with the IA referral, but Quon sued AW and the City and the OPD for violating his rights under the 4th Amendment. (He also had a statutory claim, but I’m focusing on the 4th Amendment both because I have limited space and because as far as I’m concerned, constitutional issues always trump.)

To prevail on that argument, he has to show that he had a 4th amendment expectation of privacy in the messages and that the city violated that right. As I explained in an earlier post, to have a 4th amendment expectation of privacy (i) you have to believe that something (like text messages) is private and (ii) society has to agree with you. That is, you have to subjectively believe the thing was private and society (our objective factor) has to agree that yes, you’re right. We as a culture think that thing is private.

The Ninth Circuit found that Quon did have a reasonable expectation of privacy in the text messages: “That (AW) may have been able to access the contents of the messages for its own purposes is irrelevant. . . .[Quon] did not expect that (AW) would monitor [his] text messages, much less turn over the messages to third parties without [his] consent." Quon v. Arch Wireless, supra. It also found that he “reasonably relied on” the informal policy, i.e., the implicit agreement that the OPD would not audit his messages if he paid for overages in his use of characters.

And the Ninth Circuit found that the OPD’s searching of the messages violated the 4th Amendment. The court noted that the OPD did have (essentially) probable cause to check things out to see if Quon was wasting business time on personal matters. But it also found that the OPD could have used other, less intrusive means to check this out “without intruding” on Quon’s 4th Amendment rights.

[T]he (OPD) could have warned Quon that for . . . September he was forbidden from using his pager for personal communications, and that the contents of . . . his messages would be reviewed to ensure the pager was used only for work-related purposes during that time frame. Alternatively, if the (OPD) wanted to review past usage, it could have asked Quon to count the characters himself, or asked him to redact personal messages and grant permission to the (OPD) to review the redacted transcript. . . . These are just a few . . . ways in which the (OPD) could have conducted a search that was reasonable in scope. Instead, (it) opted to review the contents of all the messages, work-related and personal, without the consent of Quon. . . This was excessively intrusive . . .[B]ecause [Quon] had a reasonable expectation of privacy in those messages, the search violated [his] Fourth Amendment rights.

Quon v. Arch Wireless, supra.

So where does that leave us? It leaves Quon with some live claims against AW, the City and the OPD . . . which I assume will be settled.

Where does it leave us in the greater scheme of things, i.e., in terms of text-message (and even email) privacy? I really don’t think it changes things all that much. There are a number of state and federal cases which have held that whether employees have a 4th Amendment right to privacy in communications sent via workplace computers or via workplace-related systems (as in this case) depends on the policies the employer has in place. If an employer has a clearly articulated and widely disseminated policy stating, in essence, “abandon all privacy you who use this system for any type of communication,” then a 4th Amendment claim is pretty much toast. It’s logically difficult to argue that you thought the email you sent from an employer (or university) monitored email system was private when the system displayed various warnings of the type I just noted.

I agree with Mr. Wright, who submitted a comment on my earlier Quon post. I think this decision is going to motivate employers (and schools, and probably agencies and any other institution that isn’t already doing so) to put lots and lots of “abandon all privacy” warnings on their systems.