Privacy Issues in the Workplace

The City of Ontario contracted with Arch Wireless to provide alphanumeric text- messaging pagers to members of the Police Department’s Special Weapons and Tactics (SWAT) Team. The City intended the pagers to help the SWAT employees mobilize and respond to emergency situations. The Arch Wireless network and equipment transmitted and archived messages received and sent by the employees on Arch Wireless pagers. The text messages did not pass through the City's computers, and thus, the City did not have access to the content of the messages. Under the City’s contract, each pager was allotted a limited number of characters per month. The City was billed overage charges for each pager that exceeded the monthly allotted character amount. While the City did not have a written policy concerning the use of text-messaging pagers, it did have a general “Computer Usage, Internet and E-mail Policy” (“the policy”) that put all employees on notice that City-owned computers and equipment were to be used solely for City related business. The City told employees in a staff meeting and in a memorandum that text messages fell within the City's policy as public information and would be subject to auditing. Quon and other officers exceeded their allotted characters for a number of months and were allowed to reimburse the City. Later, the Chief decided to audit the usage to determine if the allotted character under the City’s contract with Arch Wireless was sufficient. The City obtained transcripts directly from Arch Wireless, and determined that the vast majority of Quon’s usage was personal, not City-business. Quon was investigated and disciplined. Sergeant Quon, his wife, and other employees filed a complaint against Arch Wireless alleging violation of the Stored Communication Act, 18 U.S.C. §§ 2701-2711 (1986), and against the City, the Police Department, and the Chief for violation of their right to be free from unreasonable searches and seizures pursuant to the Fourth Amendment to the United States Constitution, and violation of their privacy rights under Article 1, Section 1 of the California Constitution. The parties filed several summary judgment motions. The District Court denied the plaintiffs' summary judgment in full, and granted in part and denied in part the City and Arch Wireless’ summary judgment motions. On appeal, the Ninth Circuit Court of Appeals held that the search of the text messages violated the appellants' Fourth Amendment and privacy rights because they had a reasonable expectation of privacy in the content of the text messages, and because the search was unreasonable. The court also held that Arch Wireless violated the Stored Communications Act because, as an electronic communications service, its release of the private data required the lawful consent of either the addressee or the recipient of the communications (as the subscriber, the City did not have a right to access the communications).

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 131