The U.S. Supreme Court granted the petition for certiorari filed by the employer in a case involving the privacy of employee communications under the Stored Communications Act provisions of the Electronic Communications Privacy Act. The Ninth Circuit ruled in Quon v. Arch Wireless Operating Co., Inc. (9th Cir. June 18, 2008), that the contents of an employee's pager text messages archived on the servers of a text messaging provider are protected from disclosure to the employer subscriber of the text messaging service under the SCA. The appeals court held that the pager text messaging provider was an “electronic communication service” within the plain language of the SCA, and therefore that the contents of archived text messages could be disclosed only to “an addressee or intended recipient” of the text messages, i.e. the employee user, not the employer subscriber to the text messaging service. The appeals court also ruled that under the particular facts presented, the subscriber to the text messaging service, a municipal police department, violated the Fourth Amendment rights of the employee user of the text messaging service when the department reviewed the contents of the messages in order to determine whether they were work-related. The court concluded that although the police department had an announced policy disclaiming any employee expectation of privacy in messages using the text messaging service, the “operational reality” was that the department had led employees to believe that such messages would be reviewed only under certain narrow circumstances.
City of Ontario v. Quon, No. 08-1332 (U.S. cert. granted Dec. 14, 2009) Questions Presented