CLCT Blog

1)      Users of text messaging have a reasonable expectation of privacy in the content of their text messages (and the court seems to extend the rationale for this to e-mails as well). 

2)      Text messages held on a provider’s servers after delivery are held for “backup purposes” absent evidence to the contrary. 

Quon, an officer for the City of Ontario Police Department, was given a pager by the department.  He was told at a formal meeting the pager’s use was to be governed by the department’s formal e-mail policy (no personal use).  However, informally Quon’s Lieutenant told him that as long as he paid overage use charges there would be no audit to see if he was using it for personal use or work use.  Quon dutifully paid his overage charges and months later was audited for the content of his messages.  As is usual in these types of cases, many of them were private and sexually explicit. 

The Ninth Circuit held that under the Stored Communications Act (SCA) ArchWireless was acting as an Electronic Communications Service Provider (ECS) and not a Remote Communications Service provider (RCS).  The messages that were stored on ArchWireless’ servers were not being held in “storage” but merely for “backup purposes” absent any evidence to the contrary. 

The Fourth Amendment holding that text messagers have an expectation of privacy in the content of their messages falls neatly into the circuit’s previous decisions concerning emails.  This is the first case in which the Circuit has explicitly held that the content of emails and text messages have Fourth Amendment protections. 

While this holding will draw cheers from those who understand all of the implications of this decision on privacy in communications and jeers from law enforcement who now have more hoops to jump through, all of this begs the question of how this affects the Average User.  The Average User believes that their emails and text messages have always been private.  While they may accept that they can be intercepted and that the ISP’s or providers might be scanning messages, they still believe fundamentally that their communications are private.  A quick scan of the things people discuss via email and are sending to each other confirms this – they don’t really think anyone is watching.  And all of the various court discussions about the difference between “temporarily” holding messages “incidental” to transmission or in a more long term storage doesn’t change the fact that the Average User still believes no one will be able to read their email LEGALLY unless they are given permission by the sender or recipient.  The Ninth Circuit has been at the forefront of the discussions on privacy and technology.  How long before the other circuits follow suit?  While it appeared the Sixth Circuit might be on board in their decision in Warshak, that decision was vacated and will be scheduled for an en banc hearing.  Stay tuned!