Alaska Employment Law

The 9th Circuit has held that public employees enjoy a constitutionally-protected reasonable expectation of privacy in the content of text messages they send over employer-provided pagers, even if the employer has promulgated a no-privacy rule, if the employer also has an informal policy of not auditing the content.  Here, while the author of the informal policy was not an official policymaker, he had operational charge of the pagers, and thus spoke for the employer when he orally represented that the employer would not inspect text content so long as employees paid for excess usage. 

The panel also held that the expectation of privacy was not significantly lessened by the fact that members of the public could obtain the messages under the state’s Public Records Act.  As the trial court said,

There is no evidence before the [c]ourt suggesting that [Public Records Act] requests to the department are so widespread or frequent as to constitute ‘an open atmosphere so open to fellow employees or the public that no expectation of privacy is reasonable.’

The privacy rights of recipients of the messages (whether co-employee or otherwise) depend on whether the sender has consented to disclosure.

The court also held that the paging company was an “electronic communication service,” rather than a “remote computing service,” under the 1986 Stored Communications Act.  Because the company acted “knowingly” in releasing transcripts of the text to the employer, it violated the SCA. 

Quon v. Arch Wireless Operating Company, Inc., 2008 WL _______ (9th Cir. June 18, 2008)

Update: See Volokh Conspiracy for commentary.  Orin Kerr argues that reasonable expectation rules from the public sector do not automatically carry over to the private sector.