## Facts

- The City of Ontario provided police employees, including Sergeant Jeff Quon, with city-owned two-way text pagers serviced by Arch Wireless.
- Arch Wireless transmitted and temporarily stored pager messages on its servers and maintained archived copies for a limited period.
- The City maintained a general computer/e-mail policy stating employees had no expectation of privacy, but the policy did not expressly address text pagers.
- An OPD supervisor told officers that if they paid any monthly overage charges, their pager messages would not be audited.
- Quon often exceeded the monthly character allotment and reimbursed the City for overages.
- The Police Chief ordered a review to determine whether the character limit should be increased.
- Instead of relying on usage totals, the City obtained from Arch Wireless transcripts of the contents of Quon’s sent and received text messages over two months, including many personal and sexually explicit messages.
- OPD personnel reviewed the transcripts and used them in an internal investigation concerning Quon’s on-duty conduct.
- Quon, his then-wife Jerilyn Quon, dispatcher April Florio (a correspondent), and Sergeant Steve Trujillo sued Arch Wireless and the City defendants, alleging violations of the Stored Communications Act (SCA), the Fourth Amendment, and the California Constitution’s privacy clause.

## Issues

1. Whether Arch Wireless’s disclosure of message contents to the City violated the SCA.
2. Whether Quon and the message correspondents had a reasonable expectation of privacy in the content of pager text messages on a city-issued device.
3. Whether the City’s acquisition and review of message transcripts was a reasonable workplace search under the Fourth Amendment.
4. Whether the City’s conduct violated the California Constitution’s right to privacy.

## Decision

- The Ninth Circuit held Arch Wireless violated the SCA by disclosing the contents of stored text messages to the City without statutory authorization.
- The court held Quon, Jerilyn Quon, and Florio had a reasonable expectation of privacy in the content of the text messages, given OPD’s practices and supervisory assurances.
- The court held the City’s review of the message contents was unreasonable in scope under the Fourth Amendment because less intrusive means were available to achieve the stated administrative purpose.
- The court held the City also violated article I, section 1 of the California Constitution because the conduct seriously invaded a reasonable privacy expectation without adequate justification.
- The court reversed in part and remanded for further proceedings consistent with its holdings.

## Legal Principles

- Under the SCA, an electronic communication service provider may disclose the contents of communications only as authorized by statute; a governmental subscriber to the service is not automatically an “addressee” or “intended recipient” entitled to message content.
- Public-employee workplace searches are evaluated for reasonableness under all the circumstances, requiring justification at inception and a scope reasonably related to the search’s purpose and not excessively intrusive.
- A public employer’s ambiguous written privacy policy may be modified in practice; consistent supervisory assurances and workplace custom can support an objectively reasonable expectation of privacy.
- A search aimed at an administrative objective (e.g., assessing plan limits) may be unreasonable when it examines the full content of personal communications instead of using less intrusive alternatives (e.g., usage totals, warnings, or targeted review).
- Under California’s constitutional privacy doctrine, plaintiffs must show a legally protected privacy interest, a reasonable expectation of privacy, and a serious invasion not justified by countervailing interests; the analysis may track Fourth Amendment reasonableness in workplace contexts.

## Conclusion

The Ninth Circuit concluded that Arch Wireless unlawfully disclosed stored text-message contents under the SCA and that the City’s broad review of the contents of two months of pager messages—despite workplace assurances limiting audits—violated both the Fourth Amendment and California’s constitutional right to privacy, warranting partial reversal and remand.


Quon v. Arch Wireless Operating Co., 529 F.3d 892 (9th Cir. 2008)