The City of Ontario contracted with defendant for wireless text-messaging services. The City?s computer, internet, and e-mail policy limited use of the City?s computers, devices, and networks to city-related business, and informed employees that they should have no expectation of privacy when using such resources. Plaintiff, a member of the City?s SWAT team, was informed that the context of text messages would not be audited so long as he paid for any charges exceeding the 25,000 characters allotted to him per billing cycle. When a lieutenant in the police department ?grew weary? of collecting fees from officers who exceeded the monthly character limit, the department contacted defendant to obtain transcripts of text messages to determine if officers were wasting city time by not doing work when they should have been. The audit of plaintiff?s text messages revealed that many were personal in nature and sexually explicit.
Plaintiff sued defendant for violation of the Stored Communications Act (SCA), and also sued the police department for violating the Fourth Amendment and the privacy protection provision of the California Constitution. The court held that defendant violated the SCA by turning over the transcripts, because text messages, emails and the like can only be released from the provider/service company to the addressee/intended recipient. As for the police department, the court held that when a government employee has a reasonable expectation of privacy, the Fourth Amendment requires the government employer use the least intrusive means feasible when conducting a search. The court held that the plaintiff had a reasonable expectation of privacy because he was told his messages would not be audited as long as he paid any fees, despite the City?s general policy. Thus, the police department?s acquisition of the transcripts of officers? text messages was held to be unreasonable considering the initial objective was to count the number of characters used monthly, and not to determine the actual content of the messages.

Quon v. Arch Wireless Operating Co., 529 F.3d 892 (9th Cir. 2008).

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