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Text Messaging Protection Against Surveillance

Is text-messaging protected against surveillance by an employer? Currently, it is if the employer is a governmental entity. But for how long? The Supreme Court recently agreed to review the Ninth Circuit’s panel opinion in Quon v. Arch Wireless, 529 F.3d 892 (9th Cir. 2008), cert. granted sub. nom. City of Ontario v. Quon, ___ U.S. ___, 130 S.Ct. 1011, 175 L.Ed.2d 617 (Dec. 14, 2009).

The central issue in Quon was whether a policeman who was issued a text message pager by the city for police business had a reasonable expectation that his personal messages sent over the pager would remain private. The city argued that there was no reasonable expectation of privacy in personal messages, because it had a written policy that personal use of city computer equipment and software for personal use was considered a violation of city policy, and that use of the Internet and the email system outside the course of business was expressly deemed not confidential. Quon had acknowledged in writing having read the policy. Quon had also been informed that text messages were considered email and would be subject to audit.

The Ninth Circuit disagreed and found Quon did have a reasonable expectation of privacy in personal messages, on the ground that the foregoing city policy was not actually followed. Officer Quon’s immediate superior had told Quon that, if Quon paid for overruns on his monthly allotment of characters, his text messages would not be audited. But in the fullness of time, Officer Quon’s messages were audited when he continued to exceed his monthly limit, and it was discovered that many of his text messages were personal. Officer Quon sued, alleging that the police department and City employees who reviewed the text messages violated Quon’s rights under the Fourth Amendment of the U.S. Constitution and similar provisions of the California constitution. The District Court and the Ninth Circuit found that Officer Quon was entitled to rely on his superior’s assurances that his text messages would remain private on the conditions stated.

The implications of this decision are profound, for both public and private employers. Under Quon, employers may no longer rest assured that they may search employee communications with impunity based upon an expressly-communicated and acknowledged written policy of non-confidentiality in such communications. The Ninth Circuit opened a bolthole in that argument for the circumstance in which a supervising manager has given subordinates assurances that certain of their communications would, under certain circumstances, remain private. The Supreme Court’s review should provide further guidance on this issue.

Interestingly, there is an argument that the Ninth Circuit’s decision in Quon is consistent with the Court’s own precedent. Under O’Connor v. Ortega, 480 U.S. 709 (l987), the Court ruled that public employees’ subjective expectation of privacy could be constrained by “actual office practices.” There, office practices served to curtail the public employee’s expectation of privacy; but there is no reason why these workplace practices could not also serve to corroborate an employee’s expectation of privacy in an appropriate case.

The Solicitor General has filed an amicus brief in support of reversal. Other amicus briefs supporting the petitioners have been filed by the National League of Cities, et al.; the League of California Cities, et al.; the National School Boards Association, et al., and Los Angeles Times Communications LLC, et al. Amicus briefs supporting the respondents are due March 23.

However the Supreme Court decides, the ruling will have ramifications throughout the cyberworld, affecting the scope of the right of privacy in cellphone texting, email, and Internet use. Respondents’ briefs on the merits are due by March 16, the case has been set for oral argument on Monday, April 19, 2010, and a decision is expected before the Court’s June recess.