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Update on Quon v. Arch Wireless: Ninth Circuit Denies Rehearing En Banc in Quon v. Arch Wireless Text Message Privacy Case

Fourth Amendment Privacy Telecommunications

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