Quon v. Arch Wireless Operating Co., 529 F.3d 892 (9th Cir. 2008)

Arch Wireless contracted to provide wireless text-messaging services for the City of Ontario, including its police department. Pursuant to the city’s general Computer Usage, Internet and E-mail Policy, the use of the city’s computers and other electronic equipment, networks, etc., was limited to city-related business, access was not confidential and “users should have no expectation of privacy or confidentiality when using these resources.” Sergeant Jeff Quon, a member of the city’s SWAT team, signed an employee acknowledgement of the Policy; he also attended a meeting in which he and others were informed that text messages were considered to be the same as e-mail and could be audited by the department. Quon was later told that the content of his text messages would not be audited so long as he paid the department for any charges associated with texting more than 25,000 characters in a billing cycle. When a lieutenant in the department “grew weary” of being a bill collector for officers who exceeded the 25,000 character limit, the department contacted Arch Wireless and requested transcripts of the text messages. After the department received the transcripts from Arch, an investigation was conducted by internal affairs to determine “if someone was wasting city time not doing work when they should be.” The investigation revealed that many of Quon’s messages were personal in nature and were sexually explicit. Quon (and those with whom he had texted) sued Arch for violation of the Stored Communications Act (“SCA”) and the Ontario Police Department and its chief for violating the Fourth Amendment and the privacy protection provision of the California Constitution. The Ninth Circuit held that Arch violated the SCA by turning over the text transcripts to the city, which was only a “subscriber” and not “an addressee or intended recipient of such communication.” The Court further determined that Quon and those with whom he texted had a reasonable expectation of privacy in the text messages given the informal policy and “operational reality” of the department. Although the chief of police was shielded from liability by qualified immunity, the city and department were not. See also Nelson v. NASA, 530 F.3d 865 (9th Cir. 2008) (“low-risk” NASA contract employees were entitled to injunction precluding in-depth background investigations).