Supreme Court Will Hear Arguments in Communications Privacy Case

By Teresa Anderson, Senior Editor

The U.S. Supreme Court last week agreed to hear oral arguments in a case brought by police officers who claim that their employers illegally read their private text messages.

A federal appeals court has ruled that a police department violated the privacy rights of its officers when it obtained transcripts of text messages sent and received via a service purchased by the city. The court ruled that because officers had been told that their messages would not be read, the city had no right to access them without the permission of the officers.

In October 2001, the city of Ontario, California, contracted with Arch Wireless to provide a wireless text-messaging service for police. The city did not write a specific text-messaging policy but instead referred to its existing policy, which stated that all city-owned computers and electronic devices were to be used for city business only. The use of such equipment for personal reasons was explicitly prohibited.

A year before they had access to the text-messaging service, police officers signed a form acknowledging that they had no expectation of privacy when they used the city’s computer systems. When the text-messaging system was provided to the officers, city officials noted that the text messages were considered e-mail and were, therefore, public information and would be subject to auditing by the city.

Under the city’s contract with Arch Wireless, each text-messaging account was limited to 25,000 characters a month. After an account reached this limit, the city was required to pay additional charges. Lieutenant Steve Duke was in charge of the city’s contract and responsible for securing payment for those accounts that exceeded the character limit. If an employee used more than the allotted characters, Duke would ask the employee to write a check for the extra amount. Duke told the officers that they had to pay the overages, or the city would audit the accounts to ensure that all the correspondence was work related.

One of the officers, Jeff Quon, regularly exceeded the character limit for his account. Quon paid for the overages each time.
In a meeting held in August 2002, Duke announced that he was tired of “being a bill collector” in regards to the text-messaging accounts. The chief of police told Duke to audit the transcripts of the accounts to determine if the messages were work related. The chief noted that if all of the texts were used for city business, the police needed to consider increasing the amount of characters allowed per person.

The city obtained the transcripts from Arch Wireless and then began an audit. In the case of Quon, the city found that he had exceeded his monthly character allotment by an average of 15,000 characters. The chief turned the transcripts of Quon’s texts over to internal affairs, which launched its own investigation. Internal affairs found that Quon frequently sent personal messages to his wife and to his girlfriend. These messages were often sexually explicit.

Quon, his wife, and his girlfriend sued the city claiming that it had violated their Fourth Amendment right to be free from unreasonable search and seizure. Quon argued that he had an expectation of privacy in sending and receiving the text messages. The city argued that its policy regarding employee use of city equipment made it clear that employees had no expectation of privacy when using city computer systems.

The city requested summary judgment—a hearing based on the facts of a case, without a trial. The U.S. District Court for the Central District of California granted the summary judgment. Quon appealed.

The U.S. Court of Appeals for the Ninth Circuit overturned the district court’s decision. The appeals court found that the city’s formal policy was sound but that Quon had a reasonable expectation of privacy because of Duke’s informal policy. According to the court, after Duke made it clear that he would not audit the messages as long as the officers paid for the overages, Quon could reasonably expect that his messages would remain private.

The court also noted that had the city wanted to determine whether the officers needed a higher character allotment, there were several other options for achieving this goal. For example, the city could have warned the officers that an audit would be held the next month and that they should send and receive only work-related messages. The court also suggested that the city could have said that it would view transcripts of officers’ messages after the officers had a chance to redact any personal communication.

The Supreme Court’s decision in the case is expected to have a broad impact on the privacy of electronic communications in the workplace.

(Quon v. Arch Wireless, U.S. Court of Appeals for the Ninth Circuit, No. 07-55282, 2008)

♦ Photo by Amy Messere/Flickr



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