In June 2008, a Ninth Circuit panel ruled that the City of Ontario had violated police officers' reasonable expectation of privacy by reviewing text messages sent on city-issued devices without notifying the police officers in question.
On January 27, 2009, that Ninth Circuit panel denied a petition for rehearing en banc; in an unusual situation, seven (of the 27 active) Circuit judges issued a written dissent, arguing that the panel wrongly decided the Fourth Amendment issues, and thus the case should be heard en banc. This dissent triggered a written concurrence from the author of the original decision, Judge Kim M. Wardlaw.
Despite this clash, the denial of the hearing en banc makes the Quon precedent stronger case law in the Ninth Circuit. Government (and even private employers) should review their employee policies and procedures to confirm they are accurate and provide adequate notice.
For more information on the original case, see ReadN yr wrker b’s txt msgs may get u n2 ht H20 (June 2008)
