Personal Text Messages on City Pager Are Private

A city violated a police officer’s privacy rights when it retrieved and reviewed text messages on a city-issued pager in spite of a written policy that the messages were public.

The police officer, as well as the recipients and senders of other text messages on the officer’s account, sued the City of Ontario, Calif., after the city retrieved the text messages to determine which messages were personal and which were for city business. The officer had exceeded the monthly 25,000 character cap for the messages.

The trial court found that the officer had an expectation of privacy in the text messages even though there was a city policy to the contrary. When the officer was issued the pager, he was told that the text messages fell under the city’s email policy, making them public information and subject to auditing. However, because the city in the past merely required the officer to pay for the overage and did not review the text messages themselves, the court found the city waived the policy.

The appellate court agreed with the trial court “that the Department’s informal policy that the text messages would not be audited if he paid the overages rendered Quon’s expectation of privacy in these messages reasonable.” However, the appellate court cautioned that it does “not endorse a monolithic view” that text messages are private, “as this is necessarily a context-sensitive inquiry.” Even if there were no reasonable expectation of privacy, the appellate court said the search was unreasonable in scope. “There were a host of simple ways to verify the efficacy of the 25,000 character limited (if that, indeed, was the intended purpose) without intruding on Appellants’ Fourth Amendment rights.”

The officer also sued the company that provided the message service for violating the Stored Communications Act by delivering the text messages to the city. The trial court had dismissed the company. The appellate court reversed, finding that the company was an “electronic communication service” under the Act. As a result, the company could provide the text messages only to the “addressee or intended recipient.” The city was neither, but rather was the “subscriber” to the service. When the company provided the text messages to the city, it violated the Stored Communications Act.

Jerilyn Quon et al. vs. Arch Wireless Operating Company, et al., 9th Cir. Court of Appeals No. 07-55282, filed June 18, 2008.