Providers Must Follow More Stringent Rules for Disclosure than for Other Types of Content
In a decision published on June 19, 2008, Quon v. Arch Wireless --- F.3d ----, 2008 WL 2440559 (9th Cir. June 19, 2008), the United States Court of Appeals for the Ninth Circuit found that a wireless carrier violated the Stored Communications Act by disclosing the contents of text messages to a subscriber, the City of Ontario (CA) Police Department ("the City"), without the consent of individual police officers who sent or received messages using the city-owned pagers. The Ninth Circuit did so based on a finding that in storing the text messages, Arch Wireless was functioning as an "electronic communication service" rather than a "remote computing service" under the Stored Communications Act, and that the messages were in "electronic storage" for purposes of the Stored Communications Act because the storage was incidental to the transmission of communications and served as a "back up" copy for users. The Court also found that individuals sending and receiving text messages have a reasonable expectation of privacy in the content of stored text messages under the Fourth Amendment.
In Quon, the City purchased text messaging pagers for use by its police officers. Officers used the pagers to send text messages, up to an allotment of 25,000 characters per month. When the department discovered that some of the accounts were regularly used to send more characters than were permitted by the its contract with Arch Wireless, the Lieutenant tasked with administering the program informed the offending officers that if they did not pay for the overages, their messages would be reviewed to ensure that the pagers were being used for work-related purposes. Sergeant Quon was one of the offenders and he compensated the department for his excessive use. Notwithstanding Quon's payments, the Chief subsequently asked the Lieutenant to request the transcripts of the text messages so that he could determine whether the limits placed on the messaging plan needed to be adjusted.
The City officials were not able to access the text messages themselves. Rather than serving Arch Wireless with legal process, the City emailed a contact at Arch Wireless to request the transcripts. After Arch Wireless determined that the City had requested text message transcripts for its own pagers, Arch Wireless turned over the transcripts.
In the district court Quon argued, among other things, that Arch Wireless's actions violated the Stored Communications Act's prohibition on disclosure of the contents of electronic communications. See 18 U.S.C. § 2702(a). The district court first found that the City was a "subscriber" under the Stored Communications Act. Arch Wireless's liability thus turned on whether it was a Remote Computing Service or an Electronic Communication Service and whether the text messages were in "electronic storage." Under the Stored Communications Act, both an Electronic Communication Service and a Remote Computing Service can release the contents of messages to, or with the lawful consent of, "the originator or an addressee or intended recipient of such communication," whereas only a Remote Computing Service can release such information "with the lawful consent of . . . the subscriber." 18 U.S.C. §§ 2702(b). The district court reviewed the facts and held that Arch Wireless, which archives the text messages sent via its network, was a Remote Computing Service and therefore did not violate the Stored Communications Act by disclosing the contents of communications to its subscriber -- the City -- once it obtained the City's consent pursuant to 18 U.S.C. § 2702(b)(3).
On appeal, the Ninth Circuit reversed, holding that Arch Wireless was an Electronic Communication Service and had violated the Stored Communications Act by disclosing the transcripts without the consent of an addressee or intended recipient of the communications. Based on the text of the Stored Communications Act, the court found that Arch was an Electronic Communication Service because it "provided a 'service' that enabled Quon and the other Appellants to 'send or receive...electronic communications,' i.e., text messages," and did not provide "computer storage" or "processing services" to the City. The court also discussed the definition of "Remote Computer Services" included in the Senate Judiciary Committee's Report on the Electronic Communications Privacy Act, and concluded that "Congress appeared to view 'storage' as a virtual filing cabinet," and had used the term "processing services" to describe the types of data manipulation now performed by "programs such as Microsoft Excel." Because neither definition "describes the service that Arch Wireless provided to the City," the court determined that Arch was not a Remote Computing Service.
The court then compared the services offered by Arch Wireless to those at issue in Theofel v. Farey-Jones, 359 F.3d 1066, 1070 (9th Cir. 2004). It found that, as was the case with the Internet service provider's storage of sent e-mails in Theofel, the Arch Wireless "served as a conduit for the transmission of electronic communications from one user to another, and stored those communications as a 'backup' for the user." Slip Op. at 7015 (quotations omitted). Arch Wireless attempted to distinguish Theofel by claiming that it was a Remote Computing Service because it permanently stored the text messages at issue. The Ninth Circuit rejected that argument, holding that, as was the case in Theofel, "there is no indication in the record that Arch Wireless retained a permanent copy of the text-messages or stored them for the benefit of the City." Id. Although the opinion fails to explain how Arch Wireless's storage of Quon's text messages is different from the "virtual filing cabinet" Congress envisioned, it suggests that the outcome may have been different had there been evidence that Arch Wireless stored the message content permanently or specifically for its subscribers' benefit. Thus, despite the fact that the court found Arch Wireless to be an Electronic Communication Service, there remains a possibility that the Ninth Circuit may find that a text messaging service provider is a Remote Computing Service if it maintains permanent records of messages for its subscribers' benefit.
The ramifications of this decision are significant for providers of text message or similar services. With regard to legal process from the government, providers in the Ninth Circuit can no longer turn over the contents of messages unless they follow the provisions of the Stored Communications Act applicable to contents of electronic communications "in electronic storage." At a minimum, for messages that are 180 days old or less, that would require a search warrant, rather than a subpoena or an order under 18 U.S.C. § 2703(d). In addition, given the court's finding that Arch Wireless users had a reasonable expectation of privacy in their text messages, law enforcement might also be prohibited from using a subpoena or court order even to get text messages that are more than 180 days old. In cases not involving law enforcement, disclosure would generally be forbidden in all circumstances unless the consent of an originator, addressee or intended recipient is received.
If you would like more information about this decision or how it may affect your compliance policies or procedures, please contact your regular Sonnenschein attorney.
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