Employee text messages covered under Stored Communications Act and Fourth Amendment

Quon v. Arch Wireless Operating Co., Inc., — F.3d —-, 2008 WL 2440559 (9th Cir. June 18, 2008)

Sergeant Quon’s employer, the City of Ontario, California Police Department, issued him a pager with which he could send and receive text messages. Copies of text messages sent and received using the pager were archived on Arch Wireless’s computer server. The City’s agreement with Arch Wireless allowed for each user to send up to 25,000 characters’ worth of messages a month.

The police department required any employee who went over that monthly limit to pay the overage charges. Quon went over that limit several times and paid the extra fees. After awhile, the department started to investigate Quon, ostensibly to see whether the department should seek to raise the 25,000 monthly character limit. Quon’s supervisor had told him that the department would not review the contents of the messages if he continued to pay for the overages.

But the department acquired transcripts of the messages anyway. Quon sued, alleging violations of the Stored Communications Act, 18 U.S.C. §§2701-2711 (SCA) and the Fourth Amendment.

The district court awarded summary judgment to the defendants on the SCA claim, finding that Arch Wireless was a “remote computing service” as defined by the SCA, and thus it was appropriate for Arch Wireless to turn over the contents of the messages to the police department as a “subscriber” to the service.

On the defendants’ summary judgment motion on the Fourth Amendment claim, the district court determined that Quon had a reasonable expectation of privacy, but that the question of whether the search of the contents of the messages by the police chief was reasonable should be heard by a jury. That jury found that the search was reasonable because it was to determine the efficacy of the 25,000 character limit (i.e., to determine whether work-related reasons warranted upgrading).

Quon sought review of both the SCA and Fourth Amendment issues with the Ninth Circuit. On appeal, the court reversed the lower court’s holding that the SCA was not violated. As for the Fourth Amendment claim, the appellate court held that the search by the police chief was unreasonable as a matter of law, and that the question should not have even made it to the jury.

On the SCA claim, the court looked to the plain meaning of the statute as well as the legislative history from 1986 to conclude that the lower court’s determination that Arch Wireless was a remote computer service was erroneous. Arch Wireless did not provide “computer storage” nor “processing services.” Although Arch Wireless was storing the messages after transmission, the court held that that function was contemplated as one for an electronic communications service as well, which was more in line with the services Arch Wireless provided. So when Arch Wireless turned over the contents of the messages to the police department, which was merely a subscriber and not “an addressee or intended recipient of such communication[s],” it violated the SCA.

On the Fourth Amendment question, the court concluded that the search was unreasonable as a matter of law because it was unreasonable in its scope. Assuming that the only reason the police chief wanted to check the efficacy of the 25,000 character limit, there would have been less intrusive ways of doing so. Quon could have been asked to count the characters himself, or could have redacted personal messages in connection with an audit.

4 thoughts on “Employee text messages covered under Stored Communications Act and Fourth Amendment

  1. Evan Brown Post author

    Ben: Definitely. I didn't emphasize in the post (though I should have) that the court found the reasonable expectation of privacy to come from the representations the employer made, i.e., that it wouldn't search the messages so long as Quon paid the overages. If the situation was contrary to that, and the employer had made it clear all were subject to search, the holding would have been different.

  2. a. abrahim

    would the ruling in the Qoun case apply had the employer been a private entity as opposed to a police department noting the implications of such distinctions under the 4th amendment?

  3. gnome

    In Detroit, the Mayor and his Chief of Staff have been charged with perjury after text-messages revealed that they had indeed fired two Police Officers who had been investigating the rumor of a wild party at the mayor's mansion.

    According to llocal legend, the mayor had "dancers" at his Mansion; the dancers happened to turn up dead a couple of months later.

    Mayor and Cheif of Staff testified at a "wrongful discharge" trial that they had only re-assigned the Police Officers.

    After the trial eneded, the Detroit Free Press got their hands on copies of text messages which revieled that not only did the Mayor and Chief of staff indeed fire the Cops for stiffing around the "Party" but that the Mayor and Chief of Staff had been knocking boots.

    The Mayor and Chief of Staff are arguing that the Text-Messages between them are in fact private, even though they were sent on city-owned pagers during business hours.

    Have you been following the case?

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