The 9th Circuit Court of Appeals has ruled that a police department violated the Fourth Amendment to the U.S. Constitution by reading an officer's text messages sent using a third-party service provider.
In the case before the court, the police department in Ontario, California, reviewed the text messages sent and received by one of its officers via a pager. The department had launched the review after the officer and others went over their allotted character limit a few times and paid the city for the overages.
The department wanted to see whether the text messages were work-related. If they were work-related, the department would have considered raising the number of characters allotted per month.
During the review, the department asked the pager service provider Arch Wireless to provide transcripts of the text messages for audit purposes. After reviewing the transcripts, the chief of police referred the matter to internal affairs.
Internal affairs concluded that many of the messages were personal in nature and were often sexually explicit.
The officer filed a lawsuit, accusing the department of violating the Fourth Amendment to the U.S. Constitution, which protects individuals from unreasonable searches and seizures by the government.
One question before the court was: Do users of text messaging services such as those provided by Arch Wireless have a reasonable expectation of privacy in their text messages stored on the service provider's network?
The court ruled that they do, relying on a precedent set for letters and emails.
"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" the court wrote. "However, users do have a reasonable expectation of privacyin the content of their text messages vis-a-vis the service provider.
The city argued that the officer had no expectation of privacy because its "Computer Usage, Internet and E-mail Policy" stated both that the use of computers "for personal benefit is a significant violation of City of Ontario Policy " and that "[u]sers should have no expectation of privacy or confidentiality when using these resources."
The 9th Circuit Court of Appeals--
which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington--ruled that would be true if "the operational reality" in the department hadn't undermined the formal policy. For example, a lieutenant told officers that text messages wouldn't be reviewed as long officers paid the overage charges.
"Even more telling, the officer had exceeded the 25,000 character limit 'three or four times,' and had paid for the overages every time without anyone reviewing the text of the messages," the court wrote. "This demonstrated that the OPD followed its 'informal policy' and that the officer reasonably relied on it. Nevertheless, without warning, his text messages were audited by the department. Under these circumstances, the officer had a reasonable expectation of privacy in the text messages archived on Arch Wireless's server."
If the department wanted to ensure that the officer was using the pager for work purposes only, it had several options that would have been within the scope of the law, the court said.
"For example, the department could have warned the officer that for the month of September he was forbidden from using his pager for personal communications, and that the contents of all of his messages would be reviewed to ensure the pager was used only for work-related purposes during that time frame," the court said. "Alternatively, if the department wanted to review past usage, it could have asked the officer to count the characters himself, or asked him to redact personal messages and grant permission to the department to review the redacted transcript. Under this process, the officer would have an incentive to be truthful because he may have previously paid for work-related overages and presumably would want the limit increased to avoid paying for such overages in the future."
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