In this decision from the Ninth Circuit, the plaintiff was a police officer in Ontario California. He used a text messaging device provided by the city. The city had an e-mail and internet policy stating that there was no expectation of privacy on city-owned systems and that information on them was city property, but a superior had previously verbally stated that messaged would not be reviewed as long as long as overage charges were paid by the employee using the device. The city decided to investigate excess usage of the devices, and examined messages on, among others, the plaintiff’s device. Plaintiff sued, alleging a violation of the Stored Communications Act and the 4th amendment. The 9th Circuit concluded that because of the verbal statements by the superior, the plaintiff had a reasonable expectation of privacy, and therefore the city could have and should have used a less intrusive means of investigating excess usage than reading the messages.

This case is significant for a couple of reasons: most businesses have a computer and e-mail policy similar to the one at issue, and the general rule is that a policy of this sort is reasonable and enforceable. The case calls into question the viability of any such policy in the 9th Circuit, and may force multi-state employers into having two policies: one for the 9th Circuit states,and one for the rest of the country. Further, it encourages draconian enforcement of any such policy, at least in the 9th Circuit, since any lenient enforcement or lack of enforcement may give rise to a reasonable expectation of privacy and in effect invalidate the policy.