To borrow a classic line from the movie "Cool Hand Luke": What we've got here is a failure to communicate. When the city of Ontario, Calif., failed to write an airtight, unequivocal policy addressing text messaging and employee privacy, it stepped into a quagmire that has the potential to ensnare many employers in an age of exploding electronic communications.
In June, the 9th Circuit ruled in Quon v. Arch Wireless that under the Fourth Amendment employees have a reasonable expectation of privacy in the content of text messages they send using equipment and service their employers provide. The court also held that Arch Wireless violated the Stored Communications Act (SCA) when it disclosed to the city the contents of text messages without the permission of the users, including Ontario Police Sgt. Jeff Quon. Quon had sued both the city and the wireless company over disclosure of his personal text messages.
The plaintiff argued that reading a person's text message "is like somebody trying to eavesdrop on your phone conversations," says Dieter C. Dammeier, a partner at Lackie & Dammeier, which represented Quon. "Nowadays people text message. It's a new wave of communication. Hopefully, this decision is going to be the trend that keeps them more private."
The U.S. Supreme Court set the stage for the Quon decision in O'Connor v. Ortega (1987) when it held that public employees can have a Fourth Amendment expectation of privacy in their desk or other work-related areas. The court said that "if less intrusive methods were feasible, or if the depth of the inquiry or extent of the seizure exceeded that necessary for the government's legitimate purposes ... the search would be unreasonable."