The U.S. Court of Appeals for the Ninth Circuit, in Quon v. Arch Wireless Operating Co., recently held that a public employer violated its employees’ privacy rights by monitoring text messages sent over wireless equipment provided by the employer. Arch Wireless provided wireless text-messaging services to several municipal departments, including the police department, in Ontario, California. The police department had an electronic communications policy in place that expressly permitted the department to monitor e-mail and other electronic communications. Past practice of the department was to decline to review text messages so long as employees using the service paid any charges for uses in excess of the monthly allotment.
The police department decided to audit all text messages and Arch Wireless provided transcripts of the text messages to the police department. Employees of the police department sued the department for violating their privacy rights and sued the wireless provider for violations of the federal Stored Communications Act (SCA).
The court held that the police department did violate the employees’ privacy rights and that the employees reasonably relied on the informal policy and practice of the department not to monitor text messages.