Court Says Employee Text Messages Are Private

Employers do not have the right to read the contents of employees’ text messages that are obtained from a third-party provider, says a federal appellate court decision.

A unanimous three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco also held in its decision June 18 in Quon v. Arch Wireless Operating Co. Inc. that the city of Ontario, California, had violated the constitutional privacy rights of a police officer and the recipients of his text messages when it obtained copies of the messages from Arch Wireless Operating, a unit of Westborough, Massachusetts-based Arch Wireless Inc. Arch provided two-way alphanumeric pages under contract with the city.

According to the decision, Jeff Quon exceeded his monthly allotted characters in his text messages several times. He was told the Ontario Police Department would audit his messages unless he paid an overage fee, which he did. But the city still asked Arch Wireless to send it transcripts of his messages to ascertain whether they were work-related.

Quon and the recipients of his messages subsequently sued, claiming violations of the Stored Communications Act and the Fourth Amendment, which protects against unlawful seizure.

In a ruling that partially overturned a lower court’s decision, the appellate court said Arch is an “electronic communications service,” which, according to the 1986 Stored Communications Act, is prohibited from “knowingly [divulging] to any person or entity the contents of a communication while in electronic storage by that service” except to the intended recipient.

The appellate court also held that the plaintiffs’ Fourth Amendment rights were violated.

“Do users of text messaging services such as those provided by Arch Wireless have a reasonable expectation of privacy in their text messages stored on the service provider’s network? We hold that they do,” says the decision, which returned the case to the lower court.

Attorneys in the case could not be reached for comment.

Filed by Judy Greenwald of Business Insurance, a sister publication of Workforce Management. To comment, e-mail editors@workforce.com.