In my last post, Does an Employee have a Right to Privacy in Non-Business
Text Messages Sent or Received on Leased City Pagers? Part I, I introduced
a US District court case concerning non-business related text messages
sent and received on leased city pagers and whether or not these private
messages could be read by supervisory city employees. In this post I would
like to discuss the outcome of the district case and give you an update
on the pending court of appeals case.
The district court held that Arch Wireless did not violate the SCA and
that it had the right to release the message transcripts to the city.
It further held that the plaintiffs had an expectation of privacy in their
private communications, but that because of the Lieutenant’s informal
policy on not auditing messages if the user paid for overcharges for texting,
it was a jury question as to whether the Lieutenant’s audit of the
transcripts was with the intent of determining the efficacy of the 25,000
character limit, or with the intent of investigating misconduct, since
some of the messages were sexual in nature and also could be considered
a waste of the city’s time. If the Lieutenant’s intent was
the former, then the “search” was reasonable, but if the intent
was the latter, the search was unreasonable as a matter of law. The jury
agreed that the intent was to determine efficacy of the character limit,
thus absolving all of the defendant’s of any liability.
On appeal, the court of appeals held that the employees did have an expectation
of privacy concerning their private text messages; that Arch Wireless
had no authority to turn over the transcripts to the city, and that the
search of plaintiffs’ messages constituted a violation of the 4th
Amendment to the U.S. Constitution and California privacy rights. The
court therefore reversed and remanded to the U.S. District Court for a
determination of plaintiffs’ claims against Arch Wireless and the
On December 9, 2009, the U.S. Supreme Court granted certiorari (agreed
to hear an appeal) of the case. I will continue to follow the case and
report the final decision.