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Supreme Court to consider privacy in text-messaging case

December 14, 2009 04:03 PM ET

Computerworld - 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.

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