Privacy Rights in Text Messages

By James Denis

Aug. 15, 2008

Jeff Quon worked as a police sergeant for the city of Ontario, California. During his employment the city issued him a two-way pager to text message for business use. The city had a policy of monitoring its e-mail system, but did not have an official policy regarding text messaging. Quon and other officers were told that text messages were considered the same as e-mail under the policy, but that text messages would not be monitored if employees agreed to pay the coverage charge for exceeding the amount of text messages allowed.

At its request, the city received from Arch Wireless, which provided the text messaging service, transcripts of text messages for certain police officers, and determined that many of Quon’s text messages were personal and sexually explicit. Quon sued Arch and the city in U.S. District Court in Los Angeles, alleging violations of the Stored Communications Act, the Fourth Amendment of the U.S. Constitution and the privacy provision of the California Constitution. The court rejected Quon’s claims, finding the disclosure permissible. Quon appealed.

The San Francisco-based 9th U.S. Circuit Court of Appeals reversed, holding that Arch violated the Stored Communications Act and Quon’s privacy rights under the U.S. Constitution and California law by reading his text messages without his consent. Arch was an electronic computing service and, as a result, could not disclose text message content without consent of a recipient. Thus, its disclosure to the city violated the Stored Communications Act. The 9th Circuit also held that Quon held a reasonable expectation of privacy because text messages were not monitored in most cases, including if personal use was paid for. Quon v. Arch Wireless Operating Co., 9th Cir. No. 07-55282 (6/18/08).

Impact: Employers wishing to access employees’ electronic communications need to verify that the access does not violate applicable statutes, and that the employee (and recipients of employee communications) do not have a reasonable expectation of privacy.

Workforce Management, August 11, 2008, p. 12Subscribe Now!

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