Labor & Employment Law

Text message privacy at the Supreme Court

The US Supreme Court has agreed to decide whether there is a reasonable expectation of privacy in text messages transmitted on a police SWAT pager.

City of Ontario v. Quon - Certiorari granted December 14, 2009.
[Details, briefs]

The City provided alphanumeric pagers to police officers on the SWAT team. After Sgt. Quon exceeded his allotted usage limit, the City acquired transcripts from the pager provider and discovered that Quon had used the pager for personal purposes and that some messages were sexually explicit. Quon and those with whom he had exchanged messages sued claiming an unlawful search in violation of the 4th amendment.

The trial court found that officers had a reasonable expectation of privacy in the text messages, and that liability hinged on whether the police chief's intent was to uncover misconduct rather than to discover the efficacy of the usage limit. A jury decided that the police chief's intent had to do with the usage limit, so the defendants were absolved of liability.

The 9th Circuit reversed, holding that the search was unreasonable as matter of law, so the police chief's intent never should have gone to trial. "[T]hey had a reasonable expectation of privacy in the content of the text messages, and the search was unreasonable in scope." The 9th Circuit also denied a petition for rehearing en banc, over the dissent of seven judges.

The US Supreme Court granted certiorari on December 14, 2009 to review the 9th Circuit judgment.

Case below: Quon v. Arch Wireless (9th Cir 06/18/2008); order denying rehearing en banc, dissent from order, concurring in order

Full post as published by Ross' Employment Law Blog on December 14, 2009 (boomark / email).