On Wednesday, a three-judge panel of the Ninth Circuit Court of Appeals held that a police officer had a reasonable expectation of privacy in the contents of his text messages (See Quon v. Arch Wireless Operating Co., CV-03-00199, 9th Cir. June 18, 2008). Police officer Jeff Quon filed the action against his employer, City of Ontario, and its pager service provider, Arch Wireless, alleging a violation of his right to privacy and the Stored Communications Act.  The allegations arose from the City's request to Arch Wireless for the text-message records related to officers who exceeded the department's monthly text allotment of 25,000 characters per user.  The City's review of Quon's text messages revealed private and sexually-explicit conversations in violation of departmental policy.

While generally an employee cannot reasonably argue that they have an expectation of privacy where the employer has established a reasonable regulation or policy discouraging employees from storing personal data on their work computers, in this case, the officer's supervisor repeatedly assured him that his text messages would not be reviewed so long as he paid for any overages.  Thus, the employer's policy was not the "operational reality" at the police department.

The Court further held that the fact a third-party service provider could access the contents of the messages for its own purpose did not diminish the officer's privacy rights without some type of formal notice.  According to the Court, this was especially true given the fact that a user would not expect a service provider to monitor their text messages or turn them over to the user's employer without the user's consent.  Once the Court determined that the officer had a reasonable expectation of privacy, the Court found that the police department's search (i.e. obtaining and reviewing the officer's text messages) was unreasonable given the availability of less reasonable alternatives.  The Court further found that Arch Wireless violated the Stored Communications Act which prohibits providers of communications services from divulging private communications to certain entities and/or individuals.