Are Text Messages by Government Employees Private?

17 Dec

U.S. Supreme Court has taken a case to decide.

On December 14, 2009, the United States Supreme Court granted certiorari (meaning they decided to take the case) in a case from the Ninth Circuit Court of Appeals that revolves around the extent of a government employee’s privacy in the content of text messages sent over a government-issued pager.

A SWAT team officer in Ontario, California had the content of text messages searched by the City’s Police Department and it turned up a number of sexually explicit messages between the officer and others.  The pagers were issued by the City and the City was the account holder and paid the bills for the accounts.  The search was performed by the City in relation to investigating whether the “character limit” for each account’s monthly texting needed to be expanded or whether recurring overages were the result of personal use.  The officer and the recipients of the message sued, in part, the City, its police department and the chief of police for violation of the Fourth Amendment.  The District Court granted summary judgment to the defendants dismissing the plaintiffs’ claims.[1]  The Plaintiffs appealed.

The Ninth Circuit Court of Appeals issued a decision in June of 2008 overturning the District Court’s decision and allowing the claims of the Plaintiffs to proceed.  The portion of the Ninth Circuit’s decision that related to the privacy of the text messages found that the SWAT officer had an expectation of privacy in the content of the messages and the search of that content without the officer’s consent was unreasonable.  The full opinion can be found here.  The primary elements of this portion of the Ninth Circuit’s holding were:

  1. Searches of private property of government employees by the government employer are subject to the Fourth Amendment;
  2. Users of text message services have a reasonable expectation of privacy in the content of their text messages in the context of that case (which might have been different had other policies been in place); and
  3. The search of the content of the text messages was unreasonable as there were less invasive ways to effectuate the purpose of the search.

The City, its police department, and the police chief petitioned the United States Supreme Court to take its case.  The issues that they asked the Court to review were:

  1. Whether the officer had a reasonable expectation of privacy considering the messages were on a city pager and there was an official “no-privacy” policy, even though a non-policymaking lieutenant had an informal policy of allowing some personal use of pagers.
  2. Whether the Ninth Circuit erred in analyzing whether the department could have used “less intrusive” methods to achieve the purpose of the search.
  3. Whether individuals who send a message to an officer’s city pager have an expectation that the content of the message will be free from review by the officer’s government employer.

The case will likely be decided by the Supreme Court sometime in the next year.

This case has numerous potential implications for government employees, as well as insight into lingering questions on the breadth of the Fourth Amendment.  The case does not have much, if any, effect as to the right of employees of non-government employers.  Non-government employees have far fewer rights as to the searches by their employers, though that is not to say there aren’t any.  Contact an employment lawyer with our firm if you have further questions in that regard.

This blog entry is written by Chris Renz, a shareholder at Thomsen & Nybeck, P.A. Chris practices in the litigation area of the firm with primary focus on wind energy-related lease litigation, real estate litigation, employment litigation, townhome and condominium law, and criminal law, particularly as the prosecutor for the Metropolitan Airports Commission.


[1] It is interesting to note that many of the plaintiffs were involved in a 2006 federal class-action suit concerning covert videotaping of a locker room to investigate theft of a flashlight.  See link: http://www.ics.uci.edu/~redmiles/ics131-FQ04/week05bPrivacy/LATimes20041029OfficersSue.pdf

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