Supreme Court to Review Text Message Privacy Case

The Supreme Court agreed Monday, December 14, to review a California case involving employers’ rights to read the content of employees’ text messages that were obtained from a third-party provider.

The case, City of Ontario et al. v. Jeffrey Quon et al., concerns the privacy rights of a police officer and the recipients of his text messages. According to a June 18, 2008, unanimous decision by a three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco, the city of Ontario, California, and its third-party provider, Arch Wireless Operating, had violated the constitutional privacy rights of Quon—a city police officer—and those who received his text messages when it obtained copies of the messages from Arch.

Arch, a unit of Westborough, Massachusetts-based Arch Wireless Inc., provided two-way alphanumeric pages under contract with the city. The text messages were sent from Quon’s city-provided pager.

According to the appellate decision, Quon exceeded his monthly allotted characters in his text messages several times. He was told the 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.

After the appeals court declined earlier this year to review the case en banc, the city appealed to the U.S. Supreme Court, which agreed to review the case.

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

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