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    Ninth Circuit Court of Appeals: There Is a Fourth Amendment Privacy Right for Text Messages

    CNet News and the Los Angeles Times report on Quon v. Arch Wireless (pdf), a Ninth Circuit Court of Appeals case concerning the privacy of mobile phones’ SMS text messages. From CNet:

    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 court’s opinion read:

    As a matter of law, Arch Wireless is an “electronic communication service” that provided text messaging service via pagers to the Ontario Police Department. The search of Appellants’ text messages violated their Fourth Amendment and California constitutional privacy rights because they had a reasonable expectation of privacy in the content of the text messages, and the search was unreasonable in scope.

    The Los Angeles Times notes the broad implications of the ruling: 

    The text message portion of the ruling, issued by the U.S. 9th Circuit Court of Appeals, will affect all employers who contract with an outside provider for messaging, as most do. Access to e-mail would be barred if the employer contracts out its e-mail service rather than maintaining an internal server to handle it.

    A majority of companies keep employee e-mail on their servers, analysts said. Microsoft Corp.’s Outlook program, which has a 65% share of the corporate e-mail market, can be used either on a company’s internal systems or on systems managed by vendors. Currently, about 28% of Outlook users have their e-mail handled by an outside vendor, according to research firm Radicati Group.

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