9th Circuit: Employees' text messages are private

In a major case marking out the boundaries of the Fourth Amendment in the electronic age, a three-judge panel of the Ninth Circuit held that employers can't read employees' text messages if they're sent through an outside service. They can't even read email unless it's stored on the employers' servers.

In a major case marking out the boundaries of the Fourth Amendment in the electronic age, a three-judge panel of the Ninth Circuit held that employers can't read employees' text messages if they're sent through an outside service. They can't even read email unless it's stored on the employers' servers. (Read the decision (PDF)).

In this case, the Ontario, Calif., police department -- ostensibly to determine if Sgt. Jeff Quon was using his city-supplied pager for personal messages – obtained transcripts of text messages from the pager service provider Arch Wireless. They determined many messages were personal but took no disciplinary action. Quon and three other officers sued Arch and the department based on a federal law that prohibits electronic communications companies from disclosing private messages unless the recipient consents. The court held that employees do have a "reasonable expectation of privacy" in their text messages stored on an outside vendor's equipment. In a 1979 case, Smith, the Supreme Court held that while people have a reasonable expectation of privacy in the contents of their phone calls (thus, in Katz it was illegal for police to put a listening device on a glass-enclosed phone booth), they don't have that privacy expectation in the numbers they call.

In Forrester, the Ninth Circuit extended the analogy – which goes back to the 19th century distinction between the contents of a letter and the writing on the envelope – to email. The content of email is protected; the headers are not. The court said it sees "no meaningful difference" between emails and text messages.

One key here is that there was no consent from any of the users: if Quon had consented to have the department read his messages, his correspondents would have no grounds for complaint.

The department's search of the messages unreasonably violated that expectation of privacy, the court held. As for Arch, it violated the federal Stored Communications Act, which bars "electronic communication services" from disclosing content of stored communications. Arch argued it wasn't covered under the law but the court disagreed.

Jennifer Granick, civil liberties director at the Electronic Frontier Foundation, told AP the decision is "an immensely important one which gives the victims of unlawful searches the ability to suppress illegally obtained evidence."

(Oops! I quoted AP! Sue me.)

Arch and the city say they will appeal.

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