IT Employment

Court rules employee text messages are private

Your employer cannot look at text messages sent on your work-issued PDAs, according to a federal appellate court decision.

Your employer cannot look at text messages sent on your work-issued PDAs, according to a federal appellate court decision.

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According to a federal appellate court decision, employers do not have the right to read the contents of employees' text messages that are obtained from a third-party provider. Here's the rundown of the case that spurred this decision, according to Workforce.com:

A unanimous three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco also held in its decision June 18 in Quon v. Arch Wireless Operating Co. Inc. that the city of Ontario, California, had violated the constitutional privacy rights of a police officer and the recipients of his text messages when it obtained copies of the messages from Arch Wireless Operating, a unit of Westborough, Massachusetts-based Arch Wireless Inc. Arch provided two-way alphanumeric pages under contract with the city.

According to the decision, Jeff Quon exceeded his monthly allotted characters in his text messages several times. He was told the Ontario Police Department would audit his messages unless he paid an overage fee, which he did. But the city still asked Arch Wireless to send it transcripts of his messages to ascertain whether they were work-related.

Quon and the recipients of his messages subsequently sued, claiming violations of the Stored Communications Act and the Fourth Amendment, which protects against unlawful seizure.

In a ruling that partially overturned a lower court's decision, the appellate court said Arch is an "electronic communications service," which, according to the 1986 Stored Communications Act, is prohibited from "knowingly [divulging] to any person or entity the contents of a communication while in electronic storage by that service" except to the intended recipient.

The appellate court also held that the plaintiffs' Fourth Amendment rights were violated.

"Do users of text messaging services such as those provided by Arch Wireless have a reasonable expectation of privacy in their text messages stored on the service provider's network? We hold that they do," says the decision, which returned the case to the lower court.

About

Toni Bowers is Managing Editor of TechRepublic and is the award-winning blogger of the Career Management blog. She has edited newsletters, books, and web sites pertaining to software, IT career, and IT management issues.

28 comments
faradhi
faradhi

is that the individual is suing Arch Wireless not the Employer. This is why the decision will be overturned if it gets to the next level of appeals. The contract for service was between the employer and Arch not the employee and Arch. Therefore, IMHO there is no expectation of privacy for the individual. There may be one for the employer in regards to some third party like a Govt entity. Since the contract for service is between the employer and arch, any arguments about who owns equipment or service verses equipment or the employee reimbursement or any Terms of Use policies are null. The data and service are owned by the companies not the employee. But then again, I am not a lawyer and I did not stay at a holiday inn express last night so what do I know.

jdclyde
jdclyde

it WILL be overturned with ease. It should and will be treated the same as any other company product. Will be a good day when the judges of the 9th die off. The mayor of Detroit just got nailed with this, because text messages on his city paid units showed that he did unjustly fire some people in a big whistle blower case, and he is looking at about a dozen charges. The courts here ruled that the text messages are NOT private.

RFink
RFink

Today text messages, tomorrow e-mail. It's just a matter of time.

chris.santo
chris.santo

but we do have two on staff at my company and the agreement that the employee's sign when they are hired are pretty iron-clad. No personal use is allowed.

reefdweller
reefdweller

Arch is the declared offending party here; they allegedly 'harmed' Quon by divulging the information to another party, so they must defend their action. So far, Quon-1, Arch-0. Interesting use of the federal statute when a simple local suit could have sufficed to show damages. Perhaps Quon-0 at the local level so the federal case.

jck
jck

[i]Will be a good day when the judges of the 9th die off.[/i] I hope no one says that about someone you love. As for the article we were discussing... I don't think it will be overturned. The minute that the Ontario Police Department made him pay for overages, they made him partial payee to the bill. Therefore, he was an investor in the time on that communication plan. As I said up top, I bet they have a equipment use policy now if they don't already.

RFink
RFink

At least that's what the mayor claimed. :)

CharlieSpencer
CharlieSpencer

"It should and will be treated the same as any other company product." As I noted above, I think it was a mistake to have the employee pay for the overages. Once he started paying, it becomes difficult to tell what messages he paid for and which ones the employer paid for. Once the employee started paying for part of the cost, I can see an expectation of privacy. This is also a reason to not allow employee owned equipment to be used for work related purposes. If an employee uses his own computer at work, are the files his or yours?

adaboy
adaboy

So if a company has an IDS for example that monitors traffic for certian patterns would this be considered monitoring if an employee uses gmail, instant messanger or hotmail?

jck
jck

I can understand if your employer audits your emails that come through their email server. However, I wonder if it's legal for them to audit your messages that you get say via Yahoo Mail or MSN Mail or GoogleMail on the web? I think that this will be interesting. I think the court will rule they can't infringe on that info also. To intercept the contents seems to me would be the same as an illegal wiretapping device.

JimInPA
JimInPA

I wonder if the department has an electronic communication policy. Where I work it clearly states that any and all electronic communication on company owned devices are property of the company. Any person communication I do on company devices I do at my own risk. Most people would have forked over the $10 to have unlimited messaging put on their personal phone and used that to text but hey... that's just me.

CharlieSpencer
CharlieSpencer

was having him pay for the overages. I wonder if the outcome would have been different if the department paid for all charges. Please explain to me why the department would be paying for text messages at all. It's a telephone; call him.

jdclyde
jdclyde

I hope someone I love never does as much damage to our country as these people. As for the overturning, he wasn't paying the bill, just for what he abused the company equipment for. It is still company/state equipment and they still have the right to it. Yes, it was wrong to make him pay for the abuses of the equipment. He should have been disciplined and/or fired over that, not make him pay out money. Bad HR decisions does not change ownership, nor sign away ANY of their rights.

jdclyde
jdclyde

Talk about an arrogant ass.

jck
jck

[i]If an employee uses his own computer at work, are the files his or yours?[/i] When I was in college, state law in Oklahoma said that if a piece of software was developed on a state owned syste, it was property of the State of Oklahoma. Well, I couldn't stomach that. So, I always did my software development from my house and only uploaded it to compile and test. My intellectual property is mine. No one else's, unless they pay me for it.

jdclyde
jdclyde

in NOT trying to save a few bucks up front by allowing personal equipment to be used in the office. how do you know the system isn't compromised? how do you know that system isn't intentionally hacking from the inside? people don't realize, it is the DATA that is expensive to replace.

Dumphrey
Dumphrey

these services, but the monitoring of the content of the messages since you as a company have no owner ship of the mail server or web server hosting the mail service.

Dumphrey
Dumphrey

they can not reasonably monitor that unless they monitor ALL web traffic, and even then you would have to use a non-ssl session. What a company can, (and do) do (heheh i said dodo) is block all access to web mail based sites. Legal, simple, and avoids any issues down the line, no invasion of privacy if the employee is actively breaking usage policy to email.

Lightstorm
Lightstorm

I just posted just about the same reply above a few seconds ago!

jck
jck

they will have a policy now for sure lol

Lightstorm
Lightstorm

They were using two-way text pagers, which aren't telephones. However, I'm sure the company should have a policy in place that the company owns all communications with company-owned devices. Employers do that with email; why not in this case? Most companies I know of allow 'limited personal use', but that doesn't mean you own the data.

NotSoChiGuy
NotSoChiGuy

...and one of the case studies involved the growing use of two-way pagers amongst civil employees (police, firefighters, etc) in the wake of 9/11; since the police/fire radios aren't always as effective in disseminating urgent info to the masses quickly. Asides from that, though, you're right, had they simply not phrased it along the lines of 'pay, and we'll ignore', this would have never have made it to trial. As jaded as it sounds, had this been a major city, this wouldn't have happened, either. The captain (or higher) would have found a way to 'encourage' someone to come forward, and give an anonymous tip that a cop was using text messaging to conduct illicit business. Things would have been smooth sailing from there in getting the records.

jck
jck

I was wondering the same thing

jck
jck

is married...and his wife is legally entitled as 1/2 ownership of all his possessions by law... can his wife walk into your business and demand his company emails, since by law she is one half of the marital unit and has legal right to half his holdings in the company? I don't think so. And, especially since the service time he paid for was directly related to his messages he is entitled to privacy since they paid for none of that and he was given open right to use the phone so long as he did not go over their alloted contractual limits. i'm not lookin to buy companies anyway...if i win a huge powerball lotto, i'm buying a football (soccer) club in England or Scotland. WBA was up for sale for 50M. DAMN

jdclyde
jdclyde

which means being PART owner of the service AND having it in their name, entitles them to full access. If I buy a company, I have the full and legal right to wipe the slate clean, as is the standard for office personal.

jck
jck

[i]I hope someone I love never does as much damage to our country as these people.[/i] Can you show the damage they have done? Please define it in terms of quantifiable damage. [i]As for the overturning, he wasn't paying the bill, just for what he abused the company equipment for. It is still company/state equipment and they still have the right to it.[/i] Ownership of hardware is not the same as usage of the network on which it operates. They are two seperate things. One is property. One is service. You should know this, being a network admin type. They could confiscate the equipment, and not allow him to abuse the service. But, the fact they had him pay part of the plan rate means he is part owner in that service. [i]Yes, it was wrong to make him pay for the abuses of the equipment. He should have been disciplined and/or fired over that, not make him pay out money. Bad HR decisions does not change ownership, nor sign away ANY of their rights.[/i] Again, he abused the terms of service...not the equipment itself. And, you're absolutely wrong about Bad HR decisions. If a employer violates the rights of an individual employee, it does surrender their right to pursue those matters freely. Say for instance I buy your company...and I fire you for bull$hit reasons. I may have to surrender my right to have severed ties with you cleanly if I removed you improperly under the law. If you could prove I violated your workplace and employment rights, then my right to have ended your employment without ties or consequence is nulled.

n4aof
n4aof

Actually the 9th Circuit has a great deal of influence in Supreme Court decisions (which is why they are by far the most over-ruled court in the entire federal judiciary). The Supreme Court docket consists mostly of cases where two or more circuit courts have handed down clearly conflicting decisions. It is considered important for the Supreme Court to resolve such conflicts because virtually all Circuit Court decisions are precedential. In effect, the federal law is whatever the Circuit Court says it is -- but only in the states covered by that Circuit. Thus something can be legal in Arizona and illegal in New Mexico even when we are talking about federal law rather than just state law. In a disproportionate percentage of those situations one of the conflicting courts is the 9th Circuit. But you are certainly correct that neither the other Circuit Courts nor the Supreme Court pay much attention to the legal 'logic' manifest by the 9th Circuit.

brockers
brockers

The 9th has a long and sordid track record of effectively ignoring both precedence and the Constitution. They are (by a factor of 2-3) the most overturned circuit court in the country. There is a high likeliness that their decision may be overturned. Often enough their decision has very little or no influence on the decisions of the Supreme Court. Bobby