Let go of my texts--all 75,000 of them! The 9th Circuit speaks

Being an attorney with an iPhone, I've wondered about the privacy of my SMS-text messages and whether they can be withheld from prying eyes. I don't mean that dinner date across from you, but in a larger sense. Think about what we've all begun to say via text messages: Carrie Underwood got dumped this way and Detroit's mayor was brought down by his text messages, for example. Like it or not, texting has become a communication medium that is here to stay, meaning that the contents of those messages are also susceptible to legal discovery, i.e., you have may have to fork it over in a lawsuit. The iPhone itself is purported of being capable of storing about 75,000 SMS-text messages. That is almost too much data in your hands! You could probably write a small novel with that amount of text messages. If you're like most people, you gripe about life and work inevitably. But, what if your employer pays for your SMS plan, can they have a peek? Especially if you go over a plan's limit? What if you're sending (gasp) personal SMS-messages on work phones?

Well, according to the 9th U.S. Circuit Court of Appeals, the answer is "no." An employer needs a sender's or receiver's consent before examining those messages. In a decision issued Wednesday, ( Quon v. Arch Wireless) the court (the highest federal court in the West short of the U.S. Supreme Court) said that the Fourth Amendment provides a reasonable expectation of privacy that extends into the world of SMS-text messages.

In the case, a city police department provided text-paging services for its officers, but had no clear text-use policy. Instead, the city relied on a general employee Internet/computer usage policy and tried to say that the SMS-texts were akin to e-mail messages. During an internal affairs investigation for excessive text-messaging charges, no less, the police department wanted to see if service-charge "overages" were work-related necessitating a better SMS-plan. After the messages were not on the PDA (d-for delete, anyone?), the city ended up getting the messages from the SMS-service provider itself. The appeals court determined the SMS-provider was subject to the provisions of the Stored Communications Act. Under that act, a "electronic communication service", like a SMS-provider, will need to get your OK before releasing the contents of these communications (which are akin to a sealed letter) because you have a legitimate expectation of privacy under the Fourth Amendment. So, for now at least, your SMS-text messages are safe from your bosses prying eyes. Is that a collective "whew" I hear?

[iamplatinum]

So, if there was an appropriate policy in place, it appears that access by the employer would have been permitted under law? Since the Stored Communications Act permits disclosure to the customer or subscriber, what if the employer was the customer or subscriber? Why wasn't the police department considered the legal customer or subscriber in this case?

[Benkinney]

This article seems to skew the wording of the ruling a little. 1) the police department did not have a firm written policy regulating test messaging 2) they relied on a informal policy of collecting money from the person that has overages in thier text messaging, and did collect from this officer before they pulled his messages and read them.

If they had a firm policy and had not collected from the officer making him a quasi subscriber (owner) of his text messages then this would have went a different way

[BenjaminWright]

Kevin: The Quon case may give employers incentive to use repetitive privacy disclaimers. What do you think? --Ben http://hack-igations.blogspot.com/2008/06/employee-imtexte-mailvoicecomputerinter.html