Police Sergeant Has Privacy Interest In Text Messages

In 2001, Arch Wireless began providing wireless text-messaging services for the City of Ontario, California. The City received 20 two-way alphanumeric pagers, which it distributed to its employees, including Sergeants Jeff Quon and Steve Trujillo of the Ontario Police Department.

The City had no official policy directed to text messaging by use of the pagers. However, the City did have a general “computer usage, internet and e-mail policy” that explicitly stated that “users should have no expectation of privacy or confidentiality when using these resources. Access to the Internet and the e-mail system is not confidential, and information produced either in hard copy or in electronic form is considered City property.”

Both Quon and Trujillo had signed an “employee acknowledgment” which borrowed language from the general policy, indicating that they had “read and fully understood the City of Ontario’s computer usage, internet and e-mail policy,” and stating that “the City of Ontario reserves the right to monitor and log all network activity including e-mail and internet use, with or without notice.”

Although the City had no official policy expressly governing use of the pagers, the City did have an informal policy. Under the City’s contract with Arch Wireless, each pager was allotted 25,000 characters, after which the City was required to pay overage charges. Lieutenant Steve Duke of the Police Department, who was in charge of the contract with Arch Wireless, stated that “the practice was, if there was overage, that the employee would pay for the overage that the City had.” Duke told Quon that it was not his intent to audit text messages to see if the overage was due to work-related transmissions, and that such auditing would be done only if the employee refused to pay for the overages.
Later, the City in fact began reading the text messages, and began an internal affairs investigation into Quon. The investigation charged that many of Quon’s messages were personal in nature and were often sexually explicit. The messages were directed to and received from, among others, Trujillo and Quon’s wife.

Quon and Trujillo responded by filing a lawsuit against both Arch Wireless and the City, contending a violation of the Fourth Amendment (on the City’s part) and the federal Stored Communications Act (on Arch Wireless’ part). The federal Ninth Circuit Court of Appeals reversed a trial court’s order that had dismissed all of the claims, and found both the City and Arch Wireless liable to Quon and Trujillo.

As to the City, the Court found that in general, there is an expectation of privacy in text messages. The Court observed that “as with letters and e-mails, it is not reasonable to expect privacy in the information used to address a text message, such as the dialing of a phone number to send a message. However, users do have a reasonable expectation of privacy in the contents of their text messages vis-à-vis the service provider. Quon and Trujillo did not expect that Arch Wireless would monitor their text messages, much less turn the messages over to third parties without their consent.”

The Court then turned to the Department’s arguments that Quon and Trujillo could have no “reasonable” expectation of privacy because of the City’s general internet and e-mail policies and because of the acknowledgment they signed prior to receiving the pagers. The Court demurred, however, finding that “if that were all, this would have destroyed any reasonable expectation of privacy that the employees might have and so scotched their claim. However, such was not the operational reality at the Department. Lieutenant Duke made it clear to the staff, and to Quon in particular, that he would not audit their pagers so long as they agreed to pay for any overages. Given that Lieutenant Duke was the one in charge of administering the use of City-owned pagers, his statements carry a great deal of weight.”

The Court next found that the “search” of the records – the City obtaining from Arch Wireless the content of the text messages – was not reasonable. The City argued that the purpose in auditing the text messages was to determine the efficacy of the 25,000-character limit. The Court found that there were less-intrusive methods available through which the City could have determined if the 25,000-character limit was efficient.

The Court reasoned that “there were a host of simple ways to verify the efficacy of the 25,000-character limit without intruding on Fourth Amendment rights. For example, the Department could have warned Quon that he was being forbidden from using his pager for personal communications, and that the contents of all of his messages would be reviewed to ensure the pager was used only for work-related purposes. Alternatively, if the Department 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 Department to review the redacted transcript. Instead, the Department opted to review the contents of all the messages, work-related and personal, without the consent of Quon or the remaining appellants. This was excessively intrusive in light of the non-investigatory object of the search.”

The Court also found that Arch Wireless was liable to Quon and Trujillo. The Court ruled that Arch Wireless was a “electronic communication service” that under the Stored Communications Act could only release the subject of electronic communications with the consent of “an addressee or intended recipient of such communication.”

Quon v. Arch Wireless Operating Company, Inc., 529 F.3d 892 (9th Cir. 2008).

This article appears in the August 2008 issue