Court defends work e-mail, text privacy

Court Rules Employee Text Messages Are Private

A Court of Appeals ruled in favor of a police officer and others who claimed that the City of Ontario, Calif. violated their Fourth Amendment rights.

By K.C. Jones,  InformationWeek
June 19, 2008
URL: http://www.informationweek.com/story/showArticle.jhtml?articleID=208700666

Employees can expect a bit more privacy when sending text messages on devices paid for by their employers, according to a court ruling this week.

The U.S. Court of Appeals for the 9th Circuit Court on Wednesday ruled in favor of a police officer and others who claimed that the City of Ontario, Calif., violated their Fourth Amendment rights, which provide citizens with a reasonable expectation of privacy, by reading the contents of their text messages.

In 2002, Ontario's police department issued pagers to its officers under a service plan that capped the number of characters each officer could send and receive via SMS. The city had a written policy banning personal use of its networks, computers, and communications devices, and claimed that policy encompassed pagers.

However, officers who went over the limit regularly paid the city back for overage costs. According to court records, the lieutenant in charge of pagers told at least one officer that he would not audit messages if officers paid the overage fees. The police chief said he decided to investigate whether the overage fees stemmed from personal use or work-related activities.

The department contacted the pager service provider, Arch Wireless, and requested transcripts of archived messages sent to and from Officer Jeff Quon, who had previously paid for overage costs and avoided audits. The investigation uncovered personal communication (with Quon's wife among others). The personal text messages included statements that were sexual in nature.

Quon, his wife, a police dispatcher, and another member of the department sued the city of Ontario in San Bernardino County, saying the city engaged in unlawful search and seizure, infringed on their privacy, and violated the Electronic Communications Privacy Act.

The court said that Arch Wireless was subject to the Stored Communications Act, which prohibits providers from releasing the contents of communications without consent from the sender or recipient. It stated that the city of Ontario could have determined how much of the messages were personal by examining numbers or redacted records and did not need to review the contents to find out why officers exceeded the limits.

Although some privacy advocates have stated that the ruling gives employees broad privacy protections for text messages, the 31-page ruling appears to rely heavily on the specifics of the case. So, for now, it's unclear how broadly it can be applied in work settings in the rest of the nation.