Does an Employee have a Right to Privacy in Non-Business Text Messages Sent or Received on Leased City Pagers? Part I

The U.S. Supreme Court decided on December 9, 2009 to review a decision of the 9th Circuit Court of Appeals that held that employees of a city police department have an expectation of privacy concerning non-business text messages sent and received on leased city pagers; that a wireless service provider had no authority to turn over to the city transcripts of the messages; and whether or not it was a violation of the 4th Amendment and California privacy laws for certain supervisory city employees to read the private messages..
The case was initially filed in the U.S. District Court for the Central District of California by some members of the Ontario, California Police Department and one employee’s wife against Arch Wireless Operating Co., Inc. (Arch Wireless), a wireless service provider, the city, the chief of police and an internal affairs officer under the Stored Communications Act (SCA) and as a §1983 Fourth Amendment illegal search and seizure.
Arch Wireless contracted with the city to provide wireless text-messaging service. Of the alphanumeric pagers furnished to the city, some were distributed to police sergeants Quon and Trujillo. The city had no official policy concerning the use of the pagers, but a police lieutenant had an informal policy providing that anyone who went over the allotted number of text messages would have to pay for the overage, in which event no audit would be made of the messages sent and received.. The informal policy also provided that text messages were considered the same as e-mail messages and fell under the provisions of the city official policy on e-mails. That policy, known as the “Computer Usage, Internet and E-mail Policy,” applied to all employees and provided, among other things, that access to the internet and e-mails was for official business only and that such communications would periodically be reviewed by the city, and that employees using these resources would have no expectation of privacy or confidentiality.
At some point the chief of police ordered that the messages, including sergeant Quon’s, would be retrieved from Arch Wireless and would be audited to determine how many message were business-related and how many were private. After obtaining the messages, the city gave them to the police department. The chief, the lieutenant and Quon’s supervisor all read the transcripts of the messages.
In my next post, Part II, I will discuss the district court outcome of this case and the current status of the court of appeals case.

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