The U.S. Supreme Court has agreed to review a federal appeals court ruling involving the privacy of personal text messages sent and received by a member of the Ontario, Calif., police department on his official pager.
Last June, the U.S. Court of Appeals for the Ninth Circuit ruled that Ontario police Sgt. Jeff Quon had a reasonable expectation of privacy in personal text messages transmitted on his SWAT pager in the absence of an official policy regarding pager use.
The appeals court ruled that a police department search of Quon's text messages and those sent to his pager by others violated his Fourth Amendment rights and California's privacy laws. The appeals court also held that the text-messaging provider for the police department violated the provisions of the Stored Communications Act when it turned over the messages without getting consent from Quon. In a writ issued today, the Supreme Court said it would review those rulings.
The case goes back to August 2002, a couple of years after Quon and other members of the Ontario police department were issued pagers. At that time, the city had no official policy related to text-messaging. However it did have a general computer, Internet and e-mail usage policy that made it explicitly clear that the systems were to be used only for official purposes.
Under the city's contract with Arch Wireless, (since purchased by USA Mobility Wireless Inc.), each pager was allotted 25,000 characters per month. Under an informal policy, police officers who exceeded that amount were required to pay for the overage themselves if they did not want their pager use to be audited.
Quon was one of several officers who frequently exceeded that limit largely on account of his sending numerous private messages, including sexually explicit messages to others, including his wife. The police department discovered the personal use when it was conducting a review of pager use to see whether the 25,000-character limit was adequate for official purposes.
In October 2004, Quon and three others sued the police chief, the city of Ontario and the police department in federal court, claiming violations to their Fourth Amendment rights against unreasonable search and seizure. They claimed that the informal policy that pager use would not be audited if the user paid overage charges had created a reasonable expectation of privacy in their text messages.
The police department, however, argued that Quon and the others should have had no expectation of privacy when using their SWAT pagers. In a friend of the court brief filed with the Ninth Circuit, the League of California Cities and the California State Association of Counties argued that, at best, the informal billing procedure would have created a "subjective expectation of privacy" for Quon.
"But the operational realities of the police department made any subjective expectation of privacy in those messages unreasonable," the brief had noted. These operational realities included the department's written policies relating to computer usage and the potential that the text messages could be subject to public disclosure requests under the California Public Records Act, they noted.
The police department also argued that the lieutenant who established the informal billing practice within the department was not an official policymaker and his actions did not constitute official policy.
The Central District Court of California granted a summary judgment in favor of Quon on the issue of his fourth amendment rights being violated.
The police department and the city appealed, but the Ninth Circuit Court of Appeals also sided with Quon. In its ruling last year, the appellate court noted that the statements by the officer in charge of administering the use of city-owned pagers carried a "a great deal of weight. That [he] was not the official policymaker, or even the final policymaker, does not diminish the chain of command."
The court held that Quon and the others had reasonable expectation of privacy because they had been led to believe that as long as they paid any overages, their messages would not be audited or reviewed. It noted that Quon had exceeded the 25,000-character limit on multiple occasions and each time had paid for the overages without anyone reviewing his messages.
The court held that the city could have at least informed Quon about the review and given him a chance to redact his personal messages.
The appeals court also faulted Arch Wireless for turning over transcripts of Quon's text messages to the police department and said the act constituted a violation of the Stored Communications Act, which prohibits the disclosure of such information except under specific circumstances.
The city of Ontario then asked for a Supreme Court review of the case. The high court is expected to consider the case in March.
Jaikumar Vijayan covers data security and privacy issues, financial services security and e-voting for Computerworld. Follow Jaikumar on Twitter @jaivijayan, send e-mail at firstname.lastname@example.org or subscribe to Jaikumar's RSS feed .