The Prurient Public Pager Privacy Peccadillo

Got a pager and the cell phone too
color contacts with the sexy attitude
From Oh My Goodness by NB Ridaz

Riddle me this, Batman – when do you have a reasonable expectation of privacy on a pager? I always thought the whole purpose of a pager was to violate your privacy by drawing the attention of strangers when it beeps in public. Apparently I was legally incorrect because the answer to the aforementioned rhetorical riddle, according to the Ninth Circuit Court is: when the pager is issued to you by your employer and they fail to have clear policy, or have conflicting policies on pager use. Say what?

Okay, lets start at the beginning with this tale of the Prurient Public Pager Privacy Peccadillo. This post in the Electronic Discovery Law blog lays it out thusly [emphasis mine].

In the summer of 2008, the Ninth Circuit held that a city employee had a reasonable expectation of privacy as to personal text-messages sent from his city-issued and city-owned text-messaging pager.  The court further ruled that the employee’s Fourth Amendment rights were violated when his supervisor read those text messages, after requesting transcripts from the service provider.

The relevant facts are as follows.  In late 2001 or early 2002, pagers were issued to city employees, including the police department.  There was no official policy regarding text-messaging on the pagers.  The City did have a general “Computer Usage, Internet and E-mail Policy”, however, which made clear that the use of city-owned “tools” was limited to business and that “use of these tools for personal benefit” was a “significant violation” of the City’s policy.  The policy also reserved the right of the City to monitor use and stated specifically that the email system was “not confidential”.

An informal policy governing the use of the pagers developed.  Specifically, the practice was that if employees went over their allotted character limit each month, they were responsible for paying the overage. [A police officer] repeatedly accrued overages.  Although the details of the conversation differ, the parties agree that [the officer and his supervisor] spoke about the overages.  [Supervisor] claimed he told [Officer] that he could pay the overages to prevent an audit, but also stated that the text messages were public records, subject to audit at any time.  [Officer] claimed [Supervisor] told him that if he didn’t want his messages read, he should pay the overage fee.  Regardless, [Officer] paid overage fees for exceeding the character limit “three or four times.”

In August 2002, [Officer] and another officer exceeded their limits.  Subsequently, an audit of the pagers was ordered to evaluate the possible need to increase the character limit.  Transcripts of the messages were obtained and read.  Thereafter, an internal affairs investigation was initiated to determine “if someone was wasting…City time not doing work when they should be.”  The investigation revealed that [Officer] had repeatedly exceeded his character limit and that many of the messages were personal and often sexual in nature.  [Officer] and those he was messaging with sued the City for violating their Fourth Amendment rights.

The District Court found that [Officer] had a reasonable expectation of privacy in his text messages.  The court further found that the reasonableness of the search turned on the purpose for which it was undertaken.  Because it was undertaken for purposes of determining a proper character limit, and not to uncover misconduct (as determined by a jury), defendants were absolved of liability.

The Ninth Circuit agreed with the district court that “the Department’s informal policy that the text messages would not be audited if he paid the overages rendered [Officer’s] expectation of privacy in those messages reasonable” and noted that the formal usage policies were not the “operational reality” at the department.

So what we have here is a failure to communicate. Or rather way to much information-free communicating going on. First you have the City with their “Computer Usage, Internet and E-mail Policy” as opposed to an actual text-messaging/pager policy – because hey, pagers are just like computers, internet and e-mail, right? Then you have the supervisor telling officers that if you go ever the character limit you can pay to avoid an audit. Add to that an officer who decides that since he’s paying for those extra characters they might as well spell out something naughty. And finally you have the City deciding to do an audit to “evaluate the possible need to increase the character limit” by reading transcripts of the messages and then deciding to launch an Internal Affairs investigation to determine “if someone was wasting…City time not doing work when they should be.” Yeah – one of those kill two birds with one stone deals. This kind of sneaky “since we’re here anyway, we just though we’d violate your privacy” behavior really chaps my hide and I’ve written about it before here, here and here. Apparently the Ninth Circuit Court agrees.

Regarding the reasonableness of the search, the court determined that although the purpose of the search was reasonable, its scope was not.  By way of example, the court noted several alternatives to actually reading messages that could have accomplished the goal of determining the need to raise the character limit, including allowing [Officer] to count characters himself.  Accordingly, the court determined Appellants’ Fourth Amendment Rights had been violated.

So there you have it. Another blow struck for privacy and the Fourth Amendment. But if you think that this means your pager traffic is actually private here in “operational reality”, I have a message for you: U R A moron.