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Employee Privacy Interest in Text Messages

The Ninth Circuit Court of Appeals has ruled that public employees may have a privacy interest in text messages sent over a system contracted for by the employer. Although the employer had adopted a general electronic communication policy that informed employees their communications were not confidential, the employer’s day-to-day practice created an expectation of privacy that was enforceable in an invasion of privacy lawsuit.

The Ontario Police Department provided some of its officers with two-way alphanumeric pagers. Its “Computer Usage, Internet and E-mail Policy” informed all employees that use of city-owned equipment and services was limited to city-related business, and that information delivered over its systems was considered city property. The city’s contract with the text messaging service provider required the city to pay overage charges for any pager that used more than 25,000 characters per month. The lieutenant who administered the contract had a practice of collecting any overage charges from the employees who used more than 25,000 characters. If an employee paid the overage charges, the lieutenant would not inquire whether the use was for city-related business. If the employee resisted paying on the grounds that all the usage was city-related, the lieutenant would audit the messages to confirm the representation. As a result, employees reasonably believed that the city would not review their text messages if they paid the overage charges.

After the service had been in place for several months, the police chief obtained transcripts of all text messages for two officers who had repeatedly exceeded the 25,000-character limit. He audited the messages to determine if they were work-related, and determined that many were not. One of the police officers that was investigated and those with whom he exchanged text messages (including his wife) sued for invasion of privacy under the Fourth Amendment. Although the federal district court absolved all defendants of liaiblity, the Ninth Circuit ruled that the city had violated the plaintiffs’ right of privacy as a matter of law.

While the opinion is limited to public employers since it involved the Fourth Amendment, California courts frequently follow federal precedent in interpreting the privacy right derived from the California Constitution. That privacy right applies to private, as well as public, employers. See Hill v. NCAA, 7 Cal. 4th 1 (1994).

Quon v. Arch Wireless Operating Co., Case No. 07-55282 (9th Cir. Jun. 18, 2008)