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Text Messages and Disclosure |
A text messaging service provider may not, consistent with the Stored Communications Act, surrender transcripts of messages sent without the consent of either the sender or the recipient, the Court of Appeals for the Ninth Circuit held June 18. Quon v. Arch Wireless Operating Company, Inc., [9th Cir, 2008].
The Ninth Circuit held that a text message provider, like an e-mail provider, is an "electronic communication service" under the SCA. That act bars electronic communication services from disclosing the contents of messages without the consent of either the sender or the recipient. A request from the account holder—in this case a municipality that distributed pagers to its employees—is not enough, the court said.
This is an interesting point in relation to how text messages are sent, over what services, and where does the SCA start and stop. The court's analogy to an e-mail provider, then questions whether Text messages are governed by the FCC or otherwise. Generally speaking, e-mail and text messages are governed by very different sets of laws.
The court went on to find that the municipality's search of the messages disclosed violated the Fourth Amendment rights of the sender. The sender, a government employee, had a reasonable expectation of privacy in the messages based on the municipality's "informal policy" of never auditing messages, the court said. The search was unreasonable because there were less burdensome ways for the account holder to monitor text-messaging use than to inspect the messages' contents.
Lastly, the informal policy of never auditing messages has prevented the municipality from ever auditing messages. However, this bring sto question who is allowed to have access to text message data. The municipality was the owner of the account from which the text messages were sent, however, the court held that the employee had an expectation of privacy, and therefore, regardless of who owned the account, the sender did not consent to the disclosure of information. The clear question is, what if you lend your cell phone to a friend. Is that text message a protected communication, which only your friend can consent to disclosure of? |
