9th Circuit: Text Messages Entitled to Fourth Amendment Protection

The 9th U.S. Circuit Court of Appeals ruled that the Ontario, Calif., Police Department's search of a sergeant's text messages violated Fourth Amendment rights and California constitutional privacy rights because senders and recipients of text messages have a reasonable expectation of privacy in the content of text messages.

Jeff Quon was a sergeant and a member of the City of Ontario's special weapons and tactics team. Arch Wireless Operating Co. provided wireless text-messaging services for city-issued pagers. Each message to or from a user was relayed to the network and then archived before the message was relayed to the recipient.

Although the city had no official policy governing the use of pagers, the city did have an informal policy governing their use. Employees were required to pay for overage charges in the event they exceeded the monthly allotted character limit. Quon went over the monthly character limit a number of times and paid the city for the overages each time.
Eventually, the city grew tired of this practice and ordered transcripts of his pager in an effort to determine whether the messages were exclusively work-related and whether the monthly limit needed to be increased. Many of the messages were personal in nature and were sexually explicit. After review, the police department referred the matter to internal affairs to determine whether Quon was wasting time by not doing his work.

Quon and the recipients of his messages filed a complaint in district court alleging violations of the Stored Communications Act (SCA) against Arch Wireless and violations of the Fourth Amendment and the California Constitution against the city and certain city employees individually. The plaintiffs appealed after denial of their summary judgment motions.

The appeals court determined that Quon and those that he exchanged messages with did have an expectation of privacy based on previous case-law recognized expectations of privacy in written communications such as letters, and in being able to speak in a phone booth free from electronic listening devices. The court also concluded that the search was unreasonable because the city could have warned Quon that it intended to review his messages for personal use or could have given him the opportunity to first redact his personal messages.

In its reasoning, the court noted that the fact that Quon's messages were not reviewed the prior times he exceeded the character limit reaffirmed his reasonable expectation of privacy. Accordingly, the court determined that the search violated the plaintiffs' Fourth Amendment and California constitutional rights. The court also determined that Arch Wireless violated the SCA.

The police department and the city argued that they should have been entitled to statutory immunity from the California constitutional claim.

In addition, the police chief argued that he was entitled to qualified immunity from the Fourth Amendment claim and the California constitutional claim because of the lack of clearly established law regarding a privacy expectation in text messages. The court reaffirmed the district court ruling that the police chief was entitled to qualified immunity on the Fourth Amendment claim.

The court also agreed with the district court that the city and the department were not entitled to statutory immunity on the state constitutional privacy claim because the chief's investigation never could have led to a judicial or administrative proceeding as a result of the informal policy permitting personal pager use.

Professional Pointer: The extent to which the Fourth Amendment and state constitutions provide protection for the contents of electronic communications is an open question. Employers should ensure that all employees sign acknowledgments providing that the company reserves the right to monitor all electronic correspondence and that users should have no expectation of privacy. In addition, any searches must be reasonable in scope.

This article should not be construed as legal advice.