Quon v. Arch Wireless Operating Co.
Ninth Circuit, No. 07-55282
Order denying rehearing en banc
Opinion concurring in denial of rehearing en banc
Opinion dissenting from denial of rehearing en banc

On January 27, 2009, the Ninth Circuit denied rehearing en banc in Quon v. Arch Wireless, a case decided by a Ninth Circuit panel in June of 2008.  The Ninth Circuit panel held that the City of Ontario, California violated the Fourth Amendment when Ontario Police Department officials audited text messages sent by a department employee. The court also held that Arch Wireless, the city’s service provider, had violated the Stored Communications Act (“SCA”), 18 U.S.C. § 2701-2711, when it disclosed messages to individuals who were not the addressees or intended recipients.

Shaun Martin of the California Appellate Report investigates the politics of the concurring and dissenting opinions.  Martin points out that despite the similarities between Judges Wardlaw and Ikuta (both judges are UCLA Law School graduates, well-recognized women in Southern California, and both practiced for the firm of O’Melveny & Myers), the conflict evident in their opinions amounts to a series of “dueling bench slaps extraordinarie.”

Judge Ikuta, who was joined in her dissent from the the denial of rehearing en banc by six other Ninth Circuit judges, criticized the Ninth Circuit panel’s conclusion that the city police department had violated the Fourth Amendment when it audited the text messages because it failed to use a less intrusive search method.  She argued that there were two problems with this conclusion: (1) in ruling that there was a reasonable expectation of privacy in the text messages sent and received on pagers provided to officers for work purposes, the panel “improperly hobble[d] government employers from managing their workforces;” and (2) the adoption of the less intrusive means test conflicted with Supreme Court case law and decisions of the majority of the federal circuit courts.

Judge Wardlaw, who authored the original panel opinion, responded in a concurring opinion that began with some harsh words:

No poet ever interpreted nature as freely as Judge Ikuta interprets the record on this appeal.  The dissent is not bound by the facts, even those found by the jury; nor is it confined to the actual fact-driven Fourth Amendment holding.

Judge Wardlaw argued that the panel opinion carefully and correctly applied Supreme Court precedent, whereas the dissent’s conclusions were based on its “loose recitation of ‘facts,’ untethered from the record evidence or jury findings.”

Previously: Ninth Circuit Applies Fourth Amendment to Text Messages at Work

United States v. Kernell
E.D. Tenn., October 7, 2008, No. 3:08-CR-142
Indictment

On October 7, 2008 a Tennessee grand jury charged David C. Kernell with violating 18 U.S.C. § 2701 (part of the Stored Communications Act) and 18 U.S.C § 1030(a)(2) (a subsection of the Computer Fraud and Abuse Act) for allegedly accessing the Yahoo e-mail account of Alaska Governor Sarah Palin, the Republican vice-presidential nominee, without authorization. Images and information from Gov. Palin’s e-mail account first hit the Internet on September 17^th, and began making headlines shortly thereafter. Several websites, including Wikileaks.org and popular blog network Gawker.com, posted screen shots and content from the hacked e-mail account.

Professor Orin S. Kerr, of the George Washington University Law School and the Volokh Conspiracy blog, sees a potential problem with the indictment. He notes that in order to charge the case as a felony, the government must claim Kernell accessed the account “to further criminal or tortuous activity.” According to Kerr, however,

[T]he indictment doesn’t exactly state what the crime or tort is that the intrusion was designed to further. It just states that the intrusion was “in furtherance of the commission of a criminal act in violation of the laws of the United States, including 18 U.S.C. Section 2701 and 18 U.S.C. Section 1030(a)(2)” But Section 2701 and Section 1030 are the intrusion statutes themselves! It makes no sense to allow a felony enhancement for a crime committed in furtherance of the crime itself . . . .

Info/Law draws parallels between this case and the Lori Drew MySpace case.

Professor Paul Ohm, of Colorado Law, believes that the breach of Gov. Palin’s e-mail account will be a “watershed event” in Internet privacy law. He notes that historically, privacy protection legislation follows on the heels of “sensationalized” privacy breaches. Furthermore, he predicts a “fierce First Amendment debate” arising from both Gawker.com and Wikileaks’ involvement in disseminating the hacked e-mail content.

Kernell, the son of a Democratic Tennessee state legislator, plead not guilty on Thursday, October 9^th, and was released without bond. If convicted, he faces up to five years in jail and $250,000 in fines. Trial is set to begin December 16^th.

Quon v. Arch Wireless Operating Company, Inc.
Ninth Circuit, June 18, 2008, No. 07-55282
Slip Opinion

On June 18, 2008, the Ninth Circuit held that the City of Ontario, California violated the Fourth Amendment when Ontario Police Department officials viewed text messages sent by a department employee. The court also held that Arch Wireless, the city’s service provider, had violated the Stored Communications Act (“SCA”), 18 U.S.C. § 2701-2711, when it disclosed messages to individuals who were not the addressees or intended recipients.

In late 2001, Sergeant Jeff Quon received a pager from his employer, the Ontario Police Department. The pagers’ wireless text-messaging service provider, Arch Wireless, had stipulated that the city was required to pay overage charges for text messages exceeding a set character limit. Quon paid the overage fee several times without further inquiry into the content of the messages until August 2002, when the Ontario police Chief Scharf moved to obtain transcripts of Quon’s text messages from a support specialist at Arch Wireless.

At least three department employees, including Quon’s immediate supervisor, reviewed the transcripts and read many of Quon’s personal messages, some of which were sexually explicit. Quon and several recipients of the messages brought suit in the District Court of Central California. They appealed the district court’s holding, arguing that Arch Wireless had violated the SCA. Quon also argued that the city violated his Fourth Amendment right to be free from unreasonable search and seizure, as well as his rights under the California Constitution.

Fourth Amendment Violation

The Fourth Amendment protects individuals and entities from unreasonable searches. The Supreme Court has previously held that the Fourth Amendment extends to public employees, although their reasonable expectation of privacy could be curtailed by official or unofficial workplace practices.

Judge Wardlaw, writing for the Ninth Circuit, stated that the reasonable expectation of privacy for text message users is very fact-specific. He noted that the official in charge of the pagers had an informal policy that the messages would not be audited if the employee paid the overage charges. Based on Quon’s prior experiences paying for overage charges, the court found that Quon had a reasonable expectation of privacy in his text messages. The Court also found that the California Public Records Act (“CPRA”), which provides that public records are open to inspection at all times, did not diminish an employee’s reasonable expectation of privacy.

Judge Wardlaw acknowledged the finding of the jury in the lower court that that the search was reasonable “at its inception” because it had a legitimate work related purpose — to ensure that officers were not being required to pay for work-related expenses. However, the Ninth Circuit found that the scope of the search was unreasonable because there were less invasive ways to verify the efficacy of the 25,000 character limit without violating Quon’s Fourth Amendment right to privacy, including warning Quon of its intent to review the content of future messages or asking Quon to redact personal messages before reviewing the transcripts.

Judge Wardlaw limited discussion of the right to privacy to the Fourth Amendment, noting that the California Constitution offers no broader privacy protection.

The Stored Communications Act

The SCA prevents providers of communication services from disclosing private communications. Under the SCA, an “electronic communication service” (“ECS”) is allowed to divulge the contents of a communication only to the sender and recipient, while a “remote computing service” (“RCS”) is also allowed to release it to a “subscriber.” An ECS is a service which provides its users with the ability to send or receive wire or electronics communications, and an RCS is a computer storage or processing service provided to the public by means of an electronic communications system. Judge Wardlaw held that Arch Wireless’ service was properly categorized as an ECS because it enabled users to send and receive messages. The Court noted that the temporary storage incidental to the communication was insufficient to make the service an RCS.

Full Text of the Secured Communications Act of 1986 at the US Government Printing Office.

Orin Kerr of the Volokh Conspiracy approves of the holding and considers it broad enough to extend to emails as well as text messages.

An article in E-Commerce Times provides statements on the case from practitioners, with Charles Baker noting that this is the first case in which the Fourth Amendment has been applied to electronic communications in a work setting. Barry Werbin believes that this will set off a series of similar suits, while Evans C. Anyanwu expresses his view that the decision is a “warning to employers to not say one thing and then do another.” He suggests that Appellees could avoid this problem in the future by appending a statement to the city’s contract declaring it an “addressee” of all messages.