Wireless Text Messaging Services CaseStudy Assignment Help
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The city of Ontario, California contracted with Arch Wireless to provide wireless text messaging services. The city received 22 alphanumeric pagers, which it distributed to itsemployees. Jeff Quon, a member of the Ontario Police Department (OPD) SWAT team,received one of these pagers and used it in the normal course of his duties. He also usedhis pager to transmit sexually-explicit messages to two other workers in the police department and to his wife. None of the recipients complained about the messages.
The city has a general computer usage, Internet, and e-mail policy. While the policy does not specifically address the use of pagers, it does state that the use of city-owned computers and all associated equipment, software programs, networks, Internet, e-mail, and other systems operating on these computers is limited to city of Ontario related business. The use of these tools for personal benefit is a significant violation of city of Ontario policy. The policy also states:
Access to all sites on the Internet is recorded and will be periodically reviewed by the city. The city of Ontario reserves the right to monitor and log all network activity including e-mail and Internet use, with or without notice. Users should have no expectation of privacy or confidentiality when using these resources.
Access to the Internet and the e-mail system is not confidential; and information produced in either hard copy or electronic form is considered city property. As such, these systems should not be used for personal or confidential communications. Deletion of e-mail or other electronic information may
not fully delete the information from the system.
The use of inappropriate, derogatory, obscene, suggestive, defamatory, or harassing language in the e-mail system will not be tolerated
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A year before the city acquired the pagers, Sgt. Quon signed an “Employment Acknowledgement” that borrowed language from the general policy, indicating he had read and fully understood the city of Ontario’s computer usage, Internet, and e-mail policy. A year after the city acquired the pagers, Sgt. Quon attended a meeting during which all people present were informed that pager messages were considered e-mail and those messages would fall under the city’s policy as public information and were eligible for auditing.
Under the city’s contract with Arch Wireless, each pager was allowed 25,000 characters per month. Beyond this limit, the city was required to pay overage charges. An informal policy was that if there was an overage, the employee would pay the additional charges. Lt. Duke with the Police Department was in charge of the purchasing contract with Arch Wireless and was responsible for collecting the overage charges from employees. Quon exceeded his monthly allowance three or four times, but he paid all overage charges. According to Sgt. Quon, Lt. Duke told him that the city would not monitor the content
of his messages unless he exceeded the budgeted monthly usage and failed to pay the
Lt. Duke let it be known that he was tired of being a bill collector. Chief Scharf then asked Lt. Duke to request the transcripts of those officers who had exceeded their limit to determine if the messages were exclusively work-related or if employees were using the pagers for personal matters. Because the Ontario Police Department was unable to access the message directly, Lt. Duke requested that Arch Wireless provide the transcripts. One of the officers whose transcripts he requested was Sgt. Quon. Following a review of the transcripts by Lt. Duke and an investigation by Internal Affairs, it was determined that Sgt. Quon had exceeded his monthly allotment by more than 15,000 characters and that many of the messages were personal in nature and were often sexually explicit.
Quon, his wife, and the two employees with whom he had exchanged the sexually explicit messages filed a lawsuit alleging that “1) the pager service provider had violated the federal Stored Communications Act by releasing transcripts of Quon’s messages to the City and 2) the City, and others, had violated their rights under the Fourth Amendment to the United States Constitution and Article I, Section 1 of the California Constitution.”11 The Stored Communications Act (SCA) was enacted as part of the Electronic
Communications Privacy Act in 1986 and is an attempt to address a number of potential privacy issues not addressed by the Fourth Amendment. The statute defines an electronic communications service (ECS) as any service that provides its users with the ability to send and receive wire or electronic communications. The U.S. Court of Appeals for the Ninth Circuit ruled that Arch Wireless was an electronic communications service and had violated the SCA when it provided transcripts of Quon’s messages to the OPD in the absence of a court order or consent of sender or intended recipients.
The court also ruled that the OPD, as a public employer, had violated Quon’s Fourth Amendment and California Privacy rights. For this to be true, the court had to agree that Quon had a reasonable expectation of privacy and that the Ontario Police Department had conducted an unreasonable search. While the OPD had an acceptable use policy that informed employees they had no reasonable expectation of privacy, OPD employees were told their texts would not be audited as long as they paid any overage charges. The court ruled that the search was unreasonable because it was too broad in scope—the OPD did
not need to review the contents of the text messages to determine if their text message
quota was too low.
1. Does anything in the court’s ruling restrict the ability of private employers with clear computer usage policies that disclaim employee privacy from monitoring employees’ e-mail and text message?
2. What learnings does this case provide for an employer who is attempting to establish an employee workplace monitoring program?
3. With 20-20 hindsight, what could the city of Ontario have done to ensure enforcement of its intended computer usage, Internet, and e-mail policy?
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