Colorado Business Litigation Lawyer Blog

As I previously reported 12/14/09 and 12/16/09, the Ninth Circuit Court of Appeals, in reversing a Federal District Court decision, held that employees of the police department of the City of Ontario, California, had a right of privacy in text messages sent on their city-owned alphanumeric pagers, even though their messages did not comply with city directives and even though the numerous non-business messages sent during work hours included private messages, many of which were to another city employee and were sexual in nature.

The U.S. Supreme Court, in an opinion announced June 17, 2010 reversed the court of appeals and says that while there may be an expectation of privacy in the text messages, the city’s motive in auditing (and reading) the messages had a legitimate business purpose, and thus did not constitute an illegal search under the 4th Amendment to the U.S. Constitution. The business purpose claimed by the city for the audit was to determine whether or not the monthly number of text messages set by the city was too low, resulting in employee/users being required to pay for work-related messages.

Moral: If you are a city employee and are told that there is a specific limit on the number of text messages you can send on city-owned pagers, and are told that messages may be audited and read by the city; and if you exceed the limit and most of your messages during working hours are private messages, some of which are sex-related, maybe you should have at least a hint that your private messages may not be secure as you had hoped.

Google, the most popular computer search engine in Colorado and in the U.S., has expanded into China to augment Google’s user base by over 35% of the market share in China. The only problem is that Chinese law allows its government to require the removal of links on the website that China feels are “subversive or offensive.”

Google, of course, isn’t into censorship. It threatened to shut-down its search engine and possibly leave the country completely. Some observers believe the real reason for the censorship is to prevent China’s citizens from gaining access to politically sensitive information and images.

In order to explore the possibility of an acceptable compromise, Google has temporarily agreed to the censored search engine while Google and the Chinese government try to pursue a negotiated solution to the problem. Apparently, China’s public stance differs from its private one. Observers believe China doesn’t want to lose face by appearing to be anti-technology. And at the same time, Google wants to keep China’s very lucrative market. It is widely believed these tensions so far have prevented a compromise.

Google notes that its China web site has been subject to hack attacks from within China that have resulted in some of Google’s intellectual property being stolen. Google has not directly blamed the Chinese government for these attacks, since Google’s site was not the only site hacked. It is believed that a number of other large companies from various business sectors in the U.S. were also attacked. Google and the U.S. government are investigating in an effort to determine the identity of the hackers.

Google suspects the attack on its web site was for the purpose of accessing the Gmail accounts of Chinese dissidents. Google says, however, that the attack was unsuccessful because only two accounts were accessed. The only information accessed in these two accounts was information such as the date the accounts were opened and the subject line of emails, but not the content of the emails themselves.

I will closely be monitoring this controversy to see who blinks first. Stay tuned.

In my last post, Does an Employee have a Right to Privacy in Non-Business Text Messages Sent or Received on Leased City Pagers? Part I, I introduced a US District court case concerning non-business related text messages sent and received on leased city pagers and whether or not these private messages could be read by supervisory city employees. In this post I would like to discuss the outcome of the district case and give you an update on the pending court of appeals case.

The district court held that Arch Wireless did not violate the SCA and that it had the right to release the message transcripts to the city. It further held that the plaintiffs had an expectation of privacy in their private communications, but that because of the Lieutenant’s informal policy on not auditing messages if the user paid for overcharges for texting, it was a jury question as to whether the Lieutenant’s audit of the transcripts was with the intent of determining the efficacy of the 25,000 character limit, or with the intent of investigating misconduct, since some of the messages were sexual in nature and also could be considered a waste of the city’s time. If the Lieutenant’s intent was the former, then the “search” was reasonable, but if the intent was the latter, the search was unreasonable as a matter of law. The jury agreed that the intent was to determine efficacy of the character limit, thus absolving all of the defendant’s of any liability.

On appeal, the court of appeals held that the employees did have an expectation of privacy concerning their private text messages; that Arch Wireless had no authority to turn over the transcripts to the city, and that the search of plaintiffs’ messages constituted a violation of the 4th Amendment to the U.S. Constitution and California privacy rights. The court therefore reversed and remanded to the U.S. District Court for a determination of plaintiffs’ claims against Arch Wireless and the city defendants.

On December 9, 2009, the U.S. Supreme Court granted certiorari (agreed to hear an appeal) of the case. I will continue to follow the case and report the final decision.

The U.S. Supreme Court decided on December 9, 2009 to review a decision of the 9th Circuit Court of Appeals that held that employees of a city police department have an expectation of privacy concerning non-business text messages sent and received on leased city pagers; that a wireless service provider had no authority to turn over to the city transcripts of the messages; and whether or not it was a violation of the 4th Amendment and California privacy laws for certain supervisory city employees to read the private messages..

The case was initially filed in the U.S. District Court for the Central District of California by some members of the Ontario, California Police Department and one employee’s wife against Arch Wireless Operating Co., Inc. (Arch Wireless), a wireless service provider, the city, the chief of police and an internal affairs officer under the Stored Communications Act (SCA) and as a §1983 Fourth Amendment illegal search and seizure.

Arch Wireless contracted with the city to provide wireless text-messaging service. Of the alphanumeric pagers furnished to the city, some were distributed to police sergeants Quon and Trujillo. The city had no official policy concerning the use of the pagers, but a police lieutenant had an informal policy providing that anyone who went over the allotted number of text messages would have to pay for the overage, in which event no audit would be made of the messages sent and received.. The informal policy also provided that text messages were considered the same as e-mail messages and fell under the provisions of the city official policy on e-mails. That policy, known as the “Computer Usage, Internet and E-mail Policy,” applied to all employees and provided, among other things, that access to the internet and e-mails was for official business only and that such communications would periodically be reviewed by the city, and that employees using these resources would have no expectation of privacy or confidentiality.

At some point the chief of police ordered that the messages, including sergeant Quon’s, would be retrieved from Arch Wireless and would be audited to determine how many message were business-related and how many were private. After obtaining the messages, the city gave them to the police department. The chief, the lieutenant and Quon’s supervisor all read the transcripts of the messages.

In my next post, Part II, I will discuss the district court outcome of this case and the current status of the court of appeals case.