9th Cir.: Police officer had reasonable expectation of privacy in text messages on city rented two-way pager

The Ninth Circuit holds that police officer’s text messages on city rented two-way pagers were subject to a reasonable expectation of privacy for alleged personal use after the city warned the officers that it would look at messages to determine why the number of text messages was so high and expensive. The city told officers that if they paid for personal messages, there would be no audit of the message usage. Quon v. Arch Wireless Operating Co., 529 F.3d 892 (9th Cir. 2008):

Our Internet jurisprudence is instructive. In United States v. Forrester, we held that “e-mail … users have no expectation of privacy in the to/from addresses of their messages … because they should know that this information is provided to and used by Internet service providers for the specific purpose of directing the routing of information.” United States v. Forrester, 512 F.3d 500, 510 (9th Cir. 2008). Thus, we have extended the pen register and outside-of-envelope rationales to the “to/from” line of e-mails. But we have not ruled on whether persons have a reasonable expectation of privacy in the content of e-mails. Like the Supreme Court in Smith, in Forrester we explicitly noted that “e-mail to/from addresses . . . constitute addressing information and do not necessarily reveal any more about the underlying contents of communication than do phone numbers.” Id. Thus, we concluded that “[t]he privacy interests in these two forms of communication [letters and e-mails] are identical,” and that, while “[t]he contents may deserve Fourth Amendment protection … the address and size of the package do not.” Id. at 511.

We see no meaningful difference between the e-mails at issue in Forrester and the text messages at issue here. Both are sent from user to user via a service provider that stores the messages on its servers. Similarly, as in Forrester, we also see no meaningful distinction between text messages and letters. As with letters and e-mails, it is not reasonable to expect privacy in the information used to “address” a text message, such as the dialing of a phone number to send a message. However, users do have a reasonable expectation of privacy in the content of their text messages vis-a-vis the service provider. Cf. United States v. Finley, 477 F.3d 250, 259 (5th Cir. 2007) (holding that defendant had a reasonable expectation of privacy in the text messages on his cell phone, and that he consequently had standing to challenge the search). That Arch Wireless may have been able to access the contents of the messages for its own purposes is irrelevant. See United States v. Heckenkamp, 482 F.3d 1142, 1146-47 (9th Cir. 2007) (holding that a student did not lose his reasonable expectation of privacy in information stored on his computer, despite a university policy that it could access his computer in limited circumstances while connected to the university’s network); United States v. Ziegler, 474 F.3d 1184, 1189-90 (9th Cir. 2007) (holding that an employee had a reasonable expectation of privacy in a computer in a locked office despite a company policy that computer usage would be monitored). For, just as in Heckencamp, where we found persuasive that there was “no policy allowing the university actively to monitor or audit [the student’s] computer usage,” 482 F.3d at 1147, Appellants did not expect that Arch Wireless would monitor their text messages, much less turn over the messages to third parties without Appellants’ consent.

We do not endorse a monolithic view of text message users’ reasonable expectation of privacy, as this is necessarily a context-sensitive inquiry. Absent an agreement to the contrary, Trujillo, Florio, and Jerilyn Quon had no reasonable expectation that Jeff Quon would maintain the private nature of their text messages, or vice versa. See United States v. Maxwell, 45 M.J. 406, 418 (C.A.A.F. 1996) (“[T]he maker of a telephone call has a reasonable expectation that police officials will not intercept and listen to the conversation; however, the conversation itself is held with the risk that one of the participants may reveal what is said to others.” (citing Hoffa v. United States, 385 U.S. 293, 302, 87 S. Ct. 408, 17 L. Ed. 2d 374 (1966))). Had Jeff Quon voluntarily permitted the Department to review his text messages, the remaining Appellants would have no claims. Nevertheless, the OPD surreptitiously reviewed messages that all parties reasonably believed were free from third-party review. As a matter of law, Trujillo, Florio, and Jerilyn Quon had a reasonable expectation that the Department would not review their messages absent consent from either a sender or recipient of the text messages.

We now turn to Jeff Quon’s reasonable expectation of privacy, which turns on the Department’s policies regarding privacy in his text messages. We agree with the district court that the Department’s informal policy that the text messages would not be audited if he paid the overages rendered Quon’s expectation of privacy in those messages reasonable.