Recently, the United States (US) Ninth Circuit Court of Appeals addressed two important legal questions regarding text messaging in employer-provided pagers. First, the court decided whether Arch Wireless Operating Company Inc., a company providing text messaging services for the Ontario Police Department, violated the Stored Communications Act, 18 U.S.C. §§ 2701-2711 (1986); and second, whether the City of Ontario, the Ontario Police Department, and others violated a police officer's privacy rights under the Fourth Amendment to the United States (U.S.) Constitution and Article I, § 1 of the California Constitution.
The Fourth Amendment to the US Constitution establishes that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The Stored Communications Act prohibits unlawful access to stored communications; section 2701 says: "(a) Offense.--Except as provided in subsection (c) of this section whoever-
(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or
(2) intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished as provided in subsection (b) of this section." One of the exceptions found in subsection (c) establishes that this offense does not apply to conducts authorized "by the person or entity providing a wire or electronic communications service."
Ontario Police Department provided some of its officers with pagers to be used in employment-related matters. Arch Wireless was contracted to provide text messaging services for the City of Ontario. The City of Ontario had a "Computer Usage, Internet and E-mail Policy" mandatory for all city employees at the time they were hired. This Policy stated that "[t]he use of City-owned computers and all associated equipment, software, programs, networks, Internet, e-mail and other systems operating on these computers is limited to City of Ontario related business. The use of these tools for personal benefit is a significant violation of City of Ontario Policy." This City Policy additionally stated that e-mails and electronic communications were not confidential, enjoyed no expectation or privacy, and could be audited by the City with or without notice. Finally, the Policy ruled, that no derogatory, obscene, suggestive, defamatory, and harassing language was tolerated. Hence, the Ontario Police Department did not have a specific policy regarding text messaging. Ontario Police Department argued they had held informal personnel meetings where they informed police officers that the same policy regarding e-mails and Internet communications applied to text messages.
Ontario Police Officers were allowed to use, in work-related matters, up to 25,000 text messaging characters per month. Police officers were to pay text messaging use exceeding this allowance. This case record shows that, indeed, Ontario Police Officers were billed any time their text messaging use exceeded the limit. The controversy arouse when the Ontario Police requested Arch Wireless copy of the text messages in some pagers that had passed the limit in several occasions. Ontario Police informed each of the officers audited that their pagers' information had been requested. Arch Wireless provided those text messages to the Ontario Police and noticed that some of the messages contained sexually explicit language.
The audited police officers filed a complaint claiming that the Ontario Police Department violated their Fourth Amendment rights and that Arch Wireless violated the Stored Communications Act (SCA). The District Court held that Arch Wireless did not violate the SCA because Arch Wireless was a "remote computer services" (RCS) under SCA § 2702(a) and that it committed no harm when it released text messaging transcripts to its subscribers. Likewise, the District Court held that the City of Ontario and the Police Department did not violate the Fourth Amendment to the US Constitution because plaintiff could not show that there was a reasonable expectation of privacy in the text messages.
Plaintiffs appealed the District Court decision. On the issue of whether Arch Wireless violated the SCA, the Court of Appeals distinguished between "remote computer services" and "electronic communication services" (ECS). Under the SCA, RCS and ECS may release private information to, or with the lawful consent of, "an addressee or intended recipient of such communication;" whereas under the same SCA, RCS may release private information with the lawful consent of the "subscriber." The SCA defines ECS as "any service which provides to users thereof the ability to send or receive wire or electronic communications." SCA defined RCS as "the provision to the public of computer storage or processing services by means of an electronic communications system." The Court of Appeals concluded that Arch Wireless was an ECS because it provided the City with the service of sending and receiving electronic communications- text messages.
Regarding violation of the Fourth Amendment to the US Constitution and the California Constitution, the Court of Appeals held that "the search of Appellants' text messages violated their Fourth Amendment and California constitutional privacy rights because they had a reasonable expectation of privacy in the content of the text messages, and the search was unreasonable in scope."
This Ninth Circuit decision is controversial, especially because it involves text messaging in police-owned pagers. In the future, Fourth Amendment violations can be avoided by carefully drafting employer's policies about text messaging in employer-owned equipment. Once these employer's policies on text messaging are notified to employees, employees cannot not claim reasonable expectation of privacy just as they cannot claim it on e-mails. Regarding violations under the SCA, if employers want to be able, as subscribers, to obtain private information from text messaging companies, employers must either carefully draft contracts with consent policies or consciously select ECS companies as opposed to RCS companies.