e-Lessons Learned

Here is a quick summary of the case. Officer Quon worked for the Ontario Police Department in California. The pagers’ wireless text-messaging service provider, Arch Wireless, had previously stipulated that the city was required to pay overage charges for text messages exceeding a set character limit. Quon overran the 25,000 character allocation on his departmental pager. The first time it happened, Quon paid the overage charges, without any auditing of his text messages. After paying for the monthly overages 3-4 more times, Quon’s supervisor requested from Arch Wireless the prior month’s transcript to determine how much of the overage was from personal usage.

Quon’s department supervisor, and at least two other department employees, reviewed the transcripts and read many of Quon’s personal messages, some of which were sexually explicit. Subsequently, Quon and several recipients of the messages, brought suit in the District Court of Central California. Quon appealed the district court’s holding, arguing that Arch Wireless had violated the Stored Communications Act (“SCA”) and their Fourth Amendment rights by producing Quon’s text messages to the police department.

First, the court examined the scope of the Stored Communications Act, and whether Arch Wireless was a remote computing service (“RCS”) or an electronic communication service (“ECS”) to determine whether the content of the communications could just be disclosed to the recipients, or also to the subscriber without consent. Under the SCA, an “electronic communication service” (“ECS”) is allowed to divulge the contents of a communication only to the sender and recipient, while a “remote computing service” (“RCS”) is also allowed to release it to a “subscriber.” Upon concluding that Arch Wireless was an electronic computing service and, as a result, it could not disclose the content to a subscriber without consent of a recipient, the court held that disclosure of Quon’s text messages to the police department, the subscriber, violated the SCA and the employees’ privacy rights.

The Ninth Circuit also examined whether the users of text messaging have a reasonable expectation of privacy regarding text messages that are stored on the service provider’s network. Based on Quon’s prior experiences paying for overage charges, the court concluded that there was a reasonable expectation of privacy, at least as to the service provider. Even though there was a company “monitoring policy” in place, the court believed that “operational reality” revealed that text messages were not monitored in most cases, including if personal use was paid for, and that many of the employees were aware of this fact.

The basic conflict in this case was between an employer’s right to monitor or investigate employee communications and their employee’s reasonable expectations of privacy.

A great synopsis by Foley and Lardner, LLP, provides five key takeaways that should be considered by all employers.

1. The importance of having clear and precise monitoring policies.
2. Courts will go behind those monitoring policies and look at the “operational reality” of monitoring to see if the review of electronic communications is appropriate, so ensuring that your monitoring policy is followed consistently is critical.
3. Even if an employer owns a device, has a monitoring policy, and pays for the service, monitoring of the content of communications may not always be appropriate, so care must be taken before automatic monitoring is conducted.
4. This case clarifies any doubt that text messages should be included in monitoring policies, if relevant.
5. In California, public entities should be cautious in reviewing employee communications based upon the assumption that they are not private because they are public records.

Takeaway:

Using an ECS service should not put a company into a state of panic and preclude them from monitoring and investigating your corporate email; but they should make sure to create a detailed policy review for all your employees so no one has an “unreasonable expectation of privacy.” A pager, IM or other transient communication provider falls under the higher ECS definition, which means that only a named sender/recipient will be able to request a copy of the communication under the SCA.

This decision is a scary one because as employees come to rely on more and more technology in and out of the workplace, there is bound to be an overlap between personal and professional use. As employers lose the ability to monitor enterprise systems, documents, phone calls, shared services, etc., they may find themselves in compromising positions, such as the one in this case. Let us just hope that the federal courts don’t take the 9^th Circuit’s lead on this one.

*Tanya Basu is a Pharmacist and a third year student at Seton Hall Law School, focusing on Health and Intellectual Property Law.

Article posted on March 27, 2009 at 4:00 AM |              More... 
Tagged as: Consent, Discoverability, Privacy.
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