Court takes case on privacy of text messages (Dec. 14, 2009)

The Supreme Court has agreed to decide whether the Fourth Amendment protects the privacy of text messages that a government employee sends by an electronic paging device.

The case concerns the Ontario, Calif., Police Department's review of text messages sent and received by Sgt. Jeff Quon, a member of the department's SWAT team.

In 2001, Arch Wireless contracted to provide wireless text-messaging services for the City of Ontario. The city received 20 two-way alphanumeric pagers, which it distributed to its employees, including Quon.

The city had no official no-privacy policy directed to text-messaging by use of the pagers. However, it did have a general policy about computer and Internet use that indicated Ontario reserved the right to monitor e-mail messages and Internet usage. In 2000, prior to acquiring the pager, Quon signed an acknowledgment that indicated he was aware of the policy.

In August 2002, Quon and another officer exceeded a 25,000 character limit for texting. The chief of police requested the transcript of the pagers for auditing purposes. But city officials were not able to access the text messages themselves. Instead, they contacted Arch Wireless who voluntarily disclosed the transcripts to Ontario without notifying Quon. The transcripts showed that a large portion of Quon's messages were personal and many of them were sexually explicit.

Thereafter, Quon and three other Ontario police officers filed suit against the police department and wireless company.

Quon argued that he wasn't aware that the city's policy applied to his department and said that an informal policy let officers use the device for personal messages as long as they paid for the overage charges.

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.

Last year, a three-judge panel on the 9th U.S. Circuit Court of Appeals reversed the lower court order, holding that the search was unreasonable as matter of law: "[T]hey had a reasonable expectation of privacy in the content of the text messages, and the search was unreasonable in scope."

A closely-divided court denied a petition for rehearing en banc, over the dissent of seven other judges.

On Dec. 14, the Supreme Court agreed to review the case.

Question presented: (1) Whether a SWAT team member has a reasonable expectation of privacy in text messages transmitted on his SWAT pager, where the police department has an official no-privacy policy but a non-policymaking lieutenant announced an informal policy of allowing some personal use of the pagers; (2) Whether individuals who send text messages to a SWAT team member’s SWAT pager have a reasonable expectation that their messages will be free from review by the recipient’s government employer.