What’s in a Text? and Who gets to know?

While the recent focus of this blog has been on email, the Ninth Circuit handed down a ruling last week dealing with whether or not a government employee has a privacy interest in the text messages sent through work networks and equipment in Quon v. Arch Wireless.  The short answer is yes.  The more detailed answer is that I would still not text anything you don’t want your mama to see.  The full text of the opinion is here.  The Wall Street Journal Law Blog discussed the opinion here.

The City of Ontario, California limited the number of text messages for its employees. Once the limit was exceeded, the police chief ordered the transcripts from the provider to see if the messages were work related. The court first determined the service provider violated the Stored Communications Act by giving the transcript to the city which was the subscriber without the sender’s permission.  This determination is based on the court’s ruling that the service provider, Arch Wireless, was an “electronic computer service” rather than a “remote computer service.”  For those interested in that distinction, you just have to read the opinion.

Next, the court turned to the liability of the City.  The court found the senders of the texts had a reasonable expectation of privacy regarding the texts’ contents and the review of them constituted an unreasonable search in violation of the Fourth Amendment. 

Before you start texting sweet nothings to your wife, or more likely someone else, take pause.   First is the obvious, this case involved a governmental employer.  Second, the court looked at the policy in place by the police department.  Specifically, there was an informal policy that the texts would not be reviewed if the police officers paid for the overages.   This was the “operational reality” despite the fact the police officer signed the formal policy prohibiting personal use on department computer equipment and that users should have no expectation of privacy.  Third, the court left open the possibility that the texts could have been requested pursuant to California’s open records laws.  Finally, the opinion suggests the length, date, time and receiver are all types of information that could have been searched, as opposed to the actual content, without any violation of the law.

The bottom line is the law on text messages appears to be no different than the law on emails or telephone calls.  Certain industries, like energy traders, record and archive every text or IM at big costs.  Otherwise, the documentary on Enron’s collapse “The Smartest Guys in the Room” would not have been as entertaining.  Many employers require employees to sign acknowledgments that there is no expectation of privacy regarding emails or IM’s.  Because the Fourth Amendment does not necessarily apply to private employers, the standards are not as high.  However, there may be certain state privacy laws at stake.  The gross overgeneralization: for users of email and IM at work, don’t expect privacy.  For employers, tell your employees not to expect privacy and stick to your acceptable use policies.

Outside of the employment context, retrieving IM’s often comes up in family law cases.  The philandering spouse is texting or IM’ing the paramour and the divorcing spouse wants to see those.  Board certified family lawyer and colleague Kyle Sanders says, “Text messaging is becoming a more important aspect of family law investigations as philandering spouses believe the medium is private. However, pracitically every provider supplies detailed call logs which show the time, date and the phone number to which the text was sent or the phone number from which the text originated. This information is typically sufficient to establish the frequency of communication and the party with whom the philanderer is communicating.  If a party believes the content is critical, this information can be acquired by subpoena but at a significant cost, a cost not typically warranted in a family law case.  Most providers deny their ability to retrieve the actual texts, but the recent case law suggests they do in fact maintian records of the text messages on theri servers at least for a short time.” Although already throwing up other roadblocks, the service providers are likely to point to the Quon decision that will make it even more difficult to obtain the contents of those messages.