Thursday, June 19, 2008

So what is in the 9th Circuit's SMS messages?

Yes, this Inland Empire blog is going to veer into politics.

If an employer gives you something, one would naturally assume that it belongs to the employer. My employer has provided me with a cell phone, a laptop, and various other items, and there is presumably an expectation that the devices would be used to further the goals of my employer.

Similarly, the Ontario (California) Police Department issues items to its employees. Specifically:

Ontario issued 20 two-way pagers to employees, including police workers, in 2001. The devices were capable of sending and receiving text messages.

Some users routinely exceeded their monthly message limit, prompting the service provider to bill the city for excess use.

This prompted the police chief (Lloyd Scharf) to investigate, and as part of the investigation, Scharf discovered that

some of the workers were using their pagers inappropriately, such as by transmitting sexually explicit messages.

Now if I did this, chances are that my employer would fire me. But in this topsy-turvy world, several employees and a spouse sued the city, claiming an invasion of privacy.

Eventually the case made its way to the 9th Circuit. You can predict what happened next.

This case arises from the Ontario Police Department’s review of text messages sent and received by Jeff Quon, a Sergeant and member of the City of Ontario’s SWAT team. We must decide whether (1) Arch Wireless Operating Company Inc., the company with whom the City contracted for text messaging services, violated the Stored Communications Act, 18 U.S.C. §§ 2701-2711 (1986); and (2) whether the City, the Police Department, and Ontario Police Chief Lloyd Scharf violated Quon’s rights and the rights of those with whom he “texted”—Sergeant Steve Trujillo, Dispatcher April Florio, and his wife Jerilyn Quon—under the Fourth Amendment to the United States Constitution and Article I, Section 1 of the California Constitution....

As a matter of law, Arch Wireless is an “electronic communication service” that provided text messaging service via pagers to the Ontario Police Department. The search of Appellants’ text messages violated their Fourth Amendment and California constitutional privacy rights because they had a reasonable expectation of privacy in the content of the text messages, and the search was unreasonable in scope. While Chief Scharf is shielded by qualified immunity, the City and the Department are not shielded by statutory immunity. In light of our conclusions of law, we affirm in part, reverse in part, and remand to the district court for further proceedings on Appellants’ Stored Communications Act claim against Arch Wireless, and their claims against the City, the Department, and Glenn under the Fourth Amendment and California Constitution.

The general argument of the 9th Circuit is that the employees should have just been required to pay the overage charges without having the contents of the text messages revealed. The court relied upon an informal policy of Lieutenant Steve Duke, rather than the formal written policy of the Department, in making this determination.

It will be interesting to see if this decision holds up, and if it is expanded in more general terms. If so, then the age of employer-provided communication devices may go away.

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