The Ninth Circuit handed down a very important decision today in Quon v. Arch Wireless Operating Company holding that users of text messaging services ordinarily have a Fourth Amendment reasonable expectation of privacy in the contents of the text messages stored on the service provider's network. Judge Wardlaw wrote the opinion, joined by Judge Pregerson and District Judge Ronald Leighton. It's a bit of a surprise that the panel decided the issue so squarely, given that it was only lightly covered at oral argument, but it's a noteworthy holding that I think is correct and very important.

  From the opinion:

  The extent to which the Fourth Amendment provides protection for the contents of electronic communications in the Internet age is an open question. The recently minted standard of electronic communication via e-mails, text messages, and other means opens a new frontier in Fourth Amendment jurisprudence that has been little explored. Here, we must first answer the threshold question: 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? We hold that they do.
  In Katz v. United States, 389 U.S. 347 (1967), the government placed an electronic listening device on a public telephone booth, which allowed the government to listen to the telephone user's conversation. Id. at 348. The Supreme Court held that listening to the conversation through the electronic device violated the user's reasonable expectation of privacy. Id. at 353. In so holding, the Court reasoned, "One who occupies [a phone booth], shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world. To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication." Id. at 352. Therefore, "[t]he Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a 'search and seizure' within the meaning of the Fourth Amendment." Id. at 353. . . .
  . . .
  In United States v. Forrester, we held that "e-mail . . . users have no expectation of privacy in the to/from addresses of their messages . . . because they should know that this information is provided to and used by Internet service providers for the specific purpose of directing the routing of information." United States v. Forrester, 512 F.3d 500, 510 (9th Cir. 2008). Thus, we have extended the pen register and outside-of-envelope rationales to the "to/from" line of e-mails. But we have not ruled on whether persons have a reasonable expectation of privacy in the content of e-mails. Like the Supreme Court in Smith, in Forrester we explicitly noted that "e-mail to/from addresses . . . constitute addressing information and do not necessarily reveal any more about the underlying contents of communication than do phone numbers." Id. Thus, we concluded that "[t]he privacy interests in these two forms of communication [letters and e-mails] are identical," and that, while "[t]he contents may deserve Fourth Amendment protection . . . the address and size of the package do not." Id. at 511.
  We see no meaningful difference between the e-mails at issue in Forrester and the text messages at issue here.Both are sent from user to user via a service provider that stores the messages on its servers. Similarly, as in Forrester, we also see no meaningful distinction between text messages and letters. 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. However, users do have a reasonable expectation of privacy in the content of their text messages vis-a-vis the service provider.

  The reasoning here is broad: It pretty clearly indicates that there is a default of a reasonable expectation of privacy in not only text messages but also e-mails. It also further cements the emerging content/non-content distinction that I have been expecting courts to grab on to for some sort of certainty in this area. I ended up making this the critical distinction in my treatise coverage of these issues, see LaFave, Israel, King & Kerr, Criminal Procedure 4.4(c)-(d) (2007), and the Quon opinion further emphasizes the line.

  I worry that parts of the rest of the Quon opinion may trigger some confusion, because the court doesn't make entirely clear whether the Department's policies are relevant to the REP inquiry only under the special Fourth Amendment rules for public employment or under a standard that the court thinks applies more generally. To make a long story short, such policies are critical in the public employment context under O'Connor v. Ortega, but are not very important in the private employment context (except to the extent it provides third party consent rights for the employer).

In light of that, I think the Court should have clarified around the bottom of page 7021 that the employer's policies were relevant because under the Supreme Court's Ortega decision, Quon is a public employment case and special rules apply that make them relevant. Without that clarification, I suspect some readers will conclude that the Quon court thought policies are generally determinative of whether there is an REP in stored communications like text messages and e-mails. That's a position that I think is possible but actually quite novel; at the very least it's not a point to make casually.

  Two quick final points. First, the panel opinion has some interesting Stored Communications Act issues; the post is too long already, but the issues are worth noting and somewhat complicated for fellow SCA geeks out there. Second, by way of full disclosure, I vaguely recall that at some point early in the Quon litigation I was contacted by lawyers from both sides of the case and pointed both sides in the direction of some of the more obvious precedents raised by the facts.