Quon v. Arch Wireless, Inc. ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JERILYN QUON; APRIL FLORIO; JEFF 
QUON; STEVE TRUJILLO,
Plaintiffs-Appellants,
v.
ARCH WIRELESS OPERATING
COMPANY, INCORPORATED, a No. 07-55282
Delaware corporation; CITY OF
ONTARIO, a municipal corporation;  D.C. No.
CV-03-00199-SGL
LLOYD SCHARF, individually and as
OPINION
Chief of Ontario Police
Department; ONTARIO POLICE
DEPARTMENT; DEBBIE GLENN,
individually and as a Sergeant of
Ontario Police Department,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Stephen G. Larson, District Judge, Presiding
Argued and Submitted
February 6, 2008—Pasadena, California
Filed June 18, 2008
Before: Harry Pregerson and Kim McLane Wardlaw,
Circuit Judges, and Ronald B. Leighton,* District Judge.
Opinion by Judge Wardlaw
*The Honorable Ronald B. Leighton, United States District Judge for
the Western District of Washington, sitting by designation.
6997
QUON v. ARCH WIRELESS 7001
COUNSEL
Dieter C. Dammeier, Zahra Khoury, Lackie & Dammeier
APC, Upland, California, for the plaintiffs-appellants.
Dimitrios C. Rinos, Rinos & Martin, LLP, Tustin, California;
Kent L. Richland, Kent J. Bullard, Greines, Martin, Stein &
Richland LLP, Los Angeles, California, for defendants-
appellees City of Ontario, Ontario Police Department, and
Lloyd Scharf.
Bruce E. Disenhouse, Kinkle, Rodiger and Spriggs, Riverside,
California, for defendant-appellee Debbie Glenn.
John H. Horwitz, Schaffer, Lax, McNaughton & Chen, Los
Angeles, California, for defendant-appellee Arch Wireless,
Inc.
OPINION
WARDLAW, Circuit Judge:
This case arises from the Ontario Police Department’s
review of text messages sent and received by Jeff Quon, a
Sergeant and member of the City of Ontario’s SWAT team.
We must decide whether (1) Arch Wireless Operating Com-
7002 QUON v. ARCH WIRELESS
pany Inc., the company with whom the City contracted for
text messaging services, violated the Stored Communications
Act, 18 U.S.C. §§ 2701-2711 (1986); and (2) whether the
City, the Police Department, and Ontario Police Chief Lloyd
Scharf violated Quon’s rights and the rights of those with
whom he “texted”—Sergeant Steve Trujillo, Dispatcher April
Florio, and his wife Jerilyn Quon1 —under the Fourth Amend-
ment to the United States Constitution and Article I, Section
1 of the California Constitution.
I. FACTUAL BACKGROUND
On October 24, 2001, Arch Wireless (“Arch Wireless”)
contracted to provide wireless text-messaging services for the
City of Ontario. The City received twenty two-way alphanu-
meric pagers, which it distributed to its employees, including
Ontario Police Department (“OPD” or “Department”) Ser-
geants Quon and Trujillo, in late 2001 or early 2002.
According to Steven Niekamp, Director of Information
Technology for Arch Wireless:
A text message originating from an Arch Wireless
two-way alphanumeric text-messaging pager is sent
to another two-way text-messaging pager as follows:
The message leaves the originating pager via a radio
frequency transmission. That transmission is
received by any one of many receiving stations,
which are owned by Arch Wireless. Depending on
the location of the receiving station, the message is
then entered into the Arch Wireless computer net-
work either by wire transmission or via satellite by
another radio frequency transmission. Once in the
Arch Wireless computer network, the message is
sent to the Arch Wireless computer server. Once in
the server, a copy of the message is archived. The
1
Doreen Klein, a plaintiff below, has not filed an appeal.
QUON v. ARCH WIRELESS 7003
message is also stored in the server system, for a
period of up to 72 hours, until the recipient pager is
ready to receive delivery of the text message. The
recipient pager is ready to receive delivery of a mes-
sage when it is both activated and located in an Arch
Wireless service area. Once the recipient pager is
able to receive delivery of the text message, the Arch
Wireless server retrieves the stored message and
sends it, via wire or radio frequency transmission, to
the transmitting station closest to the recipient pager.
The transmitting stations are owed [sic] by Arch
Wireless. The message is then sent from the trans-
mitting station, via a radio frequency transmission,
to the recipient pager where it can be read by the
user of the recipient pager.
The City had no official policy directed to text-messaging
by use of the pagers. However, the City did have a general
“Computer Usage, Internet and E-mail Policy” (the “Policy”)
applicable to all employees. The Policy stated that “[t]he use
of City-owned computers and all associated equipment, soft-
ware, 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 provided:
C. 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 moni-
tor and log all network activity including e-mail
and Internet use, with or without notice. Users
should have no expectation of privacy or confi-
dentiality when using these resources.
D. Access to the Internet and the e-mail system is
not confidential; and information produced
either in hard copy or in electronic form is con-
7004 QUON v. ARCH WIRELESS
sidered 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.
E. The use of inappropriate, derogatory, obscene,
suggestive, defamatory, or harassing language
in the e-mail system will not be tolerated.
In 2000, before the City acquired the pagers, both Quon
and Trujillo had signed an “Employee Acknowledgment,”
which borrowed language from the general Policy, indicating
that they had “read and fully understand the City of Ontario’s
Computer Usage, Internet and E-mail policy.” The Employee
Acknowledgment, among other things, states that “[t]he City
of Ontario reserves the right to monitor and log all network
activity including e-mail and Internet use, with or without
notice,” and that “[u]sers should have no expectation of pri-
vacy or confidentiality when using these resources.” Two
years later, on April 18, 2002, Quon attended a meeting dur-
ing which Lieutenant Steve Duke, a Commander with the
Ontario Police Department’s Administration Bureau,
informed all present that the pager messages “were considered
e-mail, and that those messages would fall under the City’s
policy as public information and eligible for auditing.” Quon
“vaguely recalled attending” this meeting, but did not recall
Lieutenant Duke stating at the meeting that use of the pagers
was governed by the City’s Policy.
Although the City had no official policy expressly govern-
ing use of the pagers, the City did have an informal policy
governing their use. Under the City’s contract with Arch
Wireless, each pager was allotted 25,000 characters, after
which the City was required to pay overage charges. Lieuten-
ant Duke “was in charge of the purchasing contract” and
responsible for procuring payment for overages. He stated
that “[t]he practice was, if there was overage, that the
QUON v. ARCH WIRELESS 7005
employee would pay for the overage that the City had. . . .
[W]e would usually call the employee and say, ‘Hey, look,
you’re over X amount of characters. It comes out to X amount
of dollars. Can you write me a check for your overage[?]’ ”
The informal policy governing use of the pagers came to
light during the Internal Affairs investigation, which took
place after Lieutenant Duke grew weary of his role as bill col-
lector. In a July 2, 2003 memorandum entitled “Internal
Affairs Investigation of Jeffery Quon,” (the “McMahon Mem-
orandum”) OPD Sergeant Patrick McMahon wrote that upon
interviewing Lieutenant Duke, he learned that early on
Lieutenant Duke went to Sergeant Quon and told
him the City issued two-way pagers were considered
e-mail and could be audited. He told Sergeant Quon
it was not his intent to audit employee’s [sic] text
messages to see if the overage is due to work related
transmissions. He advised Sergeant Quon he could
reimburse the City for the overage so he would not
have to audit the transmission and see how many
messages were non-work related. Lieutenant Duke
told Sergeant Quon he is doing this because if any-
body wished to challenge their overage, he could
audit the text transmissions to verify how many were
non-work related. Lieutenant Duke added the text
messages were considered public records and could
be audited at any time.
For the most part, Lieutenant Duke agreed with McMahon’s
characterization of what he said during his interview. Later,
however, during his deposition, Lieutenant Duke recalled the
interaction as follows:
I think what I told Quon was that he had to pay for
his overage, that I did not want to determine if the
overage was personal or business unless they wanted
me to, because if they said, “It’s all business, I’m not
7006 QUON v. ARCH WIRELESS
paying for it,” then I would do an audit to confirm
that. And I didn’t want to get into the bill collecting
thing, so he needed to pay for his personal messages
so we didn’t—pay for the overage so we didn’t do
the audit. And he needed to cut down on his trans-
missions.
According to the McMahon Memorandum, Quon remem-
bered the interaction differently. When asked “if he ever
recalled a discussion with Lieutenant Duke that if his text-
pager went over, his messages would be audited . . . Sergeant
Quon said, ‘No. In fact he [Lieutenant Duke] said the other,
if you don’t want us to read it, pay the overage fee.’ ”
Quon went over the monthly character limit “three or four
times” and paid the City for the overages. Each time, “Lieu-
tenant Duke would come and tell [him] that [he] owed X
amount of dollars because [he] went over [his] allotted char-
acters.” Each of those times, Quon paid the City for the over-
ages.
In August 2002, Quon and another officer again exceeded
the 25,000 character limit. Lieutenant Duke then let it be
known at a meeting that he was “tired of being a bill collector
with guys going over the allotted amount of characters on
their text pagers.” In response, Chief Scharf ordered Lieuten-
ant Duke to “request the transcripts of those pagers for audit-
ing purposes.” Chief Scharf asked Lieutenant Duke “to
determine if the messages were exclusively work related,
thereby requiring an increase in the number of characters offi-
cers were permitted, which had occurred in the past, or if they
were using the pagers for personal matters. One of the officers
whose transcripts [he] requested was plaintiff Jeff Quon.”
City officials were not able to access the text messages
themselves. Instead, the City e-mailed Jackie Deavers, a
major account support specialist for Arch Wireless, requesting
the transcripts. According to Deavers,
QUON v. ARCH WIRELESS 7007
I checked the phone numbers on the transcripts
against the e-mail that I had gotten, and I looked into
the system to make sure they were actually pagers
that belonged to the City of Ontario, and they were.
So I took the transcripts and put them in a manila
envelope [and brought them to the City].
Deavers stated that she did not determine whether private
messages were being released, though she acknowledged that,
upon reviewing approximately four lines of the transcript, she
had realized that the messages were sexually explicit. She also
stated that she would only deliver messages to the “contact”
on the account, and that she would not deliver messages to the
“user” unless he was also the contact on the account. In this
case, the “contact” was the City.
After receiving the transcripts, Lieutenant Duke conducted
an initial audit and reported the results to Chief Scharf. Subse-
quently, Chief Scharf and Quon’s supervisor, Lieutenant
Tony Del Rio, reviewed the transcripts themselves. Then, in
October 2002, Chief Scharf referred the matter to internal
affairs “to determine if someone was wasting . . . City time
not doing work when they should be.” Sergeant McMahon,
who conducted this investigation on behalf of Internal Affairs,
enlisted the help of Sergeant Glenn, also a member of Internal
Affairs. Sergeant McMahon released the McMahon Memo-
randum on July 2, 2003. According to the Memorandum, the
transcripts revealed that Quon “had exceeded his monthly
allotted characters by 15,158 characters,” and that many of
these messages were personal in nature and were often sexu-
ally explicit. These messages were directed to and received
from, among others, the other Appellants.
II. PROCEDURAL BACKGROUND
On May 6, 2003, Appellants filed a Second Amended
Complaint in the District Court for the Central District of Cal-
ifornia alleging, inter alia, violations of the Stored Communi-
7008 QUON v. ARCH WIRELESS
cations Act (“SCA”) and the Fourth Amendment. After the
district court dismissed one of Appellants’ claims against
Arch Wireless pursuant to Federal Rule of Civil Procedure
12(b)(6), all parties filed numerous rounds of summary judg-
ment motions. On August 15, 2006, the district court denied
Appellants’ summary judgment motion in full, and granted in
part and denied in part Appellees’ summary judgment
motions.
Appellants appeal the district court’s holding that Arch
Wireless did not violate the SCA, 18 U.S.C. §§ 2701-2711.2The district court found that Arch Wireless was a “remote
computing service” under § 2702(a), and that it therefore
committed no harm when it released the text-message tran-
scripts to its “subscriber,” the City.
Appellants also appeal the district court’s resolution of their
claims against the City, the Department, Scharf, and Glenn.3
Appellants argue that the City, the Department, and Scharf
violated Appellants’ Fourth Amendment rights to be free from
unreasonable search and seizure pursuant to 42 U.S.C.
§ 1983, and that the City, Department, Scharf, and Glenn vio-
lated Article I, Section 1 of the California Constitution, which
protects a citizen’s right to privacy.4 The district court
2
Appellants fail to raise on appeal their claims against Arch Wireless for
violations of California Penal Code section 629.86 and their state-law
invasion of privacy claim under Article I, Section 1 of the California Con-
stitution. Therefore, they have waived those claims. See Blanford v. Sacra-
mento County, 406 F.3d 1110, 1114 n.8 (9th Cir. 2005).
3
Appellants fail to raise on appeal their claims against the City, the
Department, Scharf, and Glenn for violations of the Stored Communica-
tions Act and California Penal Code section 629.86. Jerilyn Quon fails to
address on appeal her claim for defamation and interference with prospec-
tive business advantage; nor does Florio address her claim that seizure of
her personal pager and cell phone violated the Fourth Amendment. There-
fore, Appellants have waived those claims. See Blanford, 406 F.3d at
1114.
4
“All people are by nature free and independent and have inalienable
rights. Among these are enjoying and defending life and liberty, acquiring,
possessing, and protecting property, and pursuing and obtaining safety,
happiness, and privacy.” CAL. CONST. art. I, § 1.
QUON v. ARCH WIRELESS 7009
addressed only the Fourth Amendment claim.5 Relying on
O’Connor v. Ortega, 480 U.S. 709, 715, 725-26 (1987), the
district court determined that to prove a Fourth Amendment
violation, the plaintiff must show that he had a reasonable
expectation of privacy in his text messages, and that the gov-
ernment’s search or seizure was unreasonable under the cir-
cumstances. The district court held that, in light of Lieutenant
Duke’s informal policy that he would not audit a pager if the
user paid the overage charges, Appellants had a reasonable
expectation of privacy in their text messages as a matter of
law. Regarding the reasonableness of the search, the district
court found that whether Chief Scharf’s intent was to uncover
misconduct or to determine the efficacy of the 25,000 charac-
ter limit was a genuine issue of material fact. If it was the for-
mer, the search was unreasonable; if it was the latter, the
search was reasonable. Concluding that Chief Scharf was not
entitled to qualified immunity on the Fourth Amendment
claim, and that the City and the Department were not entitled
to statutory immunity on the California constitutional privacy
claim, the district court held a jury trial on the single issue of
Chief Scharf’s intent. The jury found that Chief Scharf’s
intent was to determine the efficacy of the character limit.
Therefore, all defendants were absolved of liability for the
search.
On December 7, 2006, Appellants filed a motion to amend
or alter the judgment pursuant to Federal Rule of Civil Proce-
dure 59(e), and a motion for new trial pursuant to Rule 59(a).
The district court denied each of these motions. Appellants
timely appeal.
5
The district court limited its discussion to the Fourth Amendment
because “the arguments lodged by the governmental defendants against
plaintiffs’ invasion of privacy claim and state constitutional claim are the
same as those pressed against plaintiffs’ Fourth Amendment claim . . . .”
7010 QUON v. ARCH WIRELESS
III. JURISDICTION AND STANDARD OF REVIEW
The district court had jurisdiction pursuant to 28 U.S.C.
§§ 1331 and 1343. We have jurisdiction over final judgments
of the district courts pursuant to 28 U.S.C. § 1291.
We review a district court’s grant of summary judgment de
novo. Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir. 1996).
In reviewing the grant of summary judgment, we “must deter-
mine, viewing the evidence in the light most favorable to the
nonmoving party, whether genuine issues of material fact
exist and whether the district court correctly applied the rele-
vant substantive law.” Id.IV. DISCUSSION
A. Stored Communications Act
[1] Congress passed the Stored Communications Act in
1986 as part of the Electronic Communications Privacy Act.
The SCA was enacted because the advent of the Internet pres-
ented a host of potential privacy breaches that the Fourth
Amendment does not address. See Orin S. Kerr, A User’s
Guide to the Stored Communications Act, and a Legislator’s
Guide to Amending It, 72 GEO. WASH. L. REV. 1208, 1209-13
(2004). Generally, the SCA prevents “providers” of commu-
nication services from divulging private communications to
certain entities and/or individuals. Id. at 1213. Appellants
challenge the district court’s finding that Arch Wireless is a
“remote computing service” (“RCS”) as opposed to an “elec-
tronic communication service” (“ECS”) under the SCA,
§§ 2701-2711. The district court correctly concluded that if
Arch Wireless is an ECS, it is liable as a matter of law, and
that if it is an RCS, it is not liable. However, we disagree with
the district court that Arch Wireless acted as an RCS for the
City. Therefore, summary judgment in favor of Arch Wireless
was error.
QUON v. ARCH WIRELESS 7011
[2] Section 2702 of the SCA governs liability for both ECS
and RCS providers. 18 U.S.C. § 2702(a)(1)-(2). The nature of
the services Arch Wireless offered to the City determines
whether Arch Wireless is an ECS or an RCS. As the Niekamp
Declaration makes clear, Arch Wireless provided to the City
a service whereby it would facilitate communication between
two pagers—“text messaging” over radio frequencies. As part
of that service, Arch Wireless archived a copy of the message
on its server. When Arch Wireless released to the City the
transcripts of Appellants’ messages, Arch Wireless potentially
ran afoul of the SCA. This is because both an ECS and RCS
can release private information to, or with the lawful consent
of, “an addressee or intended recipient of such communica-
tion,” id. § 2702(b)(1), (b)(3), whereas only an RCS can
release such information “with the lawful consent of . . . the
subscriber.” Id. § 2702(b)(3). It is undisputed that the City
was not an “addressee or intended recipient,” and that the City
was a “subscriber.”
[3] The SCA defines an ECS as “any service which pro-
vides to users thereof the ability to send or receive wire or
electronic communications.” Id. § 2510(15). The SCA prohib-
its an ECS from “knowingly divulg[ing] to any person or
entity the contents of a communication while in electronic
storage by that service,” unless, among other exceptions not
relevant to this appeal, that person or entity is “an addressee
or intended recipient of such communication.” Id.
§ 2702(a)(1), (b)(1), (b)(3). “Electronic storage” is defined as
“(A) any temporary, intermediate storage of a wire or elec-
tronic communication incidental to the electronic transmission
thereof; and (B) any storage of such communication by an
electronic communication service for purposes of backup pro-
tection of such communication.” Id. § 2510(17).
An RCS is defined as “the provision to the public of com-
puter storage or processing services by means of an electronic
communications system.” Id. § 2711(2). Electronic communi-
cation system—which is simply the means by which an RCS
7012 QUON v. ARCH WIRELESS
provides computer storage or processing services and has no
bearing on how we interpret the meaning of “RCS”—is
defined as “any wire, radio, electromagnetic, photooptical or
photoelectronic facilities for the transmission of wire or elec-
tronic communications, and any computer facilities or related
electronic equipment for the electronic storage of such com-
munications.” Id. § 2510(14). The SCA prohibits an RCS
from “knowingly divulg[ing] to any person or entity the con-
tents of any communication which is carried or maintained on
that service.” Unlike an ECS, an RCS may release the con-
tents of a communication with the lawful consent of a “sub-
scriber.” Id. § 2702(a)(2), (b)(3).
[4] We turn to the plain language of the SCA, including its
common-sense definitions, to properly categorize Arch Wire-
less. An ECS is defined as “any service which provides to
users thereof the ability to send or receive wire or electronic
communications.” 18 U.S.C. § 2510(15). On its face, this
describes the text-messaging pager services that Arch Wire-
less provided. Arch Wireless provided a “service” that
enabled Quon and the other Appellants to “send or receive . . .
electronic communications,” i.e., text messages. Contrast that
definition with that for an RCS, which “means the provision
to the public of computer storage or processing services by
means of an electronic communications system.” Id.§ 2711(2). Arch Wireless did not provide to the City “com-
puter storage”; nor did it provide “processing services.” By
archiving the text messages on its server, Arch Wireless cer-
tainly was “storing” the messages. However, Congress con-
templated this exact function could be performed by an ECS
as well, stating that an ECS would provide (A) temporary
storage incidental to the communication; and (B) storage for
backup protection. Id. § 2510(17).
This reading of the SCA is supported by its legislative his-
tory. The Senate Report identifies two main services that pro-
viders performed in 1986: (1) data communication; and (2)
QUON v. ARCH WIRELESS 7013
data storage and processing. First, the report describes the
means of communication of information:
[W]e have large-scale electronic mail operations,
computer-to-computer data transmissions, cellular
and cordless telephones, paging devices, and video
teleconferencing . . . . [M]any different companies,
not just common carriers, offer a wide variety of
telephone and other communications services.
S. REP. NO. 99-541, at 2-3 (1986). Second,
[t]he Committee also recognizes that computers are
used extensively today for the storage and process-
ing of information. With the advent of computerized
recordkeeping systems, Americans have lost the
ability to lock away a great deal of personal and
business information. For example, physicians and
hospitals maintain medical files in offsite data banks,
businesses of all sizes transmit their records to
remote computers to obtain sophisticated data pro-
cessing services. These services as well as the pro-
viders of electronic mail create electronic copies of
private correspondence for later reference. This
information is processed for the benefit of the user
but often it is maintained for approximately 3
months to ensure system integrity.
Id. at 3. Under the heading “Remote Computer Services,” the
Report further clarifies that term refers to the processing or
storage of data by an off-site third party:
In the age of rapid computerization, a basic choice
has faced the users of computer technology. That is,
whether to process data inhouse on the user’s own
computer or on someone else’s equipment. Over the
years, remote computer service companies have
developed to provide sophisticated and convenient
7014 QUON v. ARCH WIRELESS
computing services to subscribers and customers
from remote facilities. Today businesses of all sizes
—hospitals, banks and many others—use remote
computing services for computer processing. This
processing can be done with the customer or sub-
scriber using the facilities of the remote computing
service in essentially a time-sharing arrangement, or
it can be accomplished by the service provider on the
basis of information supplied by the subscriber or
customer. Data is most often transmitted between
these services and their customers by means of elec-
tronic communications.
Id. at 10-11.
In the Senate Report, Congress made clear what it meant by
“storage and processing of information.” It provided the fol-
lowing example of storage: “physicians and hospitals main-
tain medical files in offsite data banks.” Congress appeared to
view “storage” as a virtual filing cabinet, which is not the
function Arch Wireless contracted to provide here. The Sen-
ate Report also provided an example of “processing of infor-
mation”: “businesses of all sizes transmit their records to
remote computers to obtain sophisticated data processing ser-
vices.” In light of the Report’s elaboration upon what Con-
gress intended by the term “Remote Computer Services,” it is
clear that, before the advent of advanced computer processing
programs such as Microsoft Excel, businesses had to farm out
sophisticated processing to a service that would process the
information. See Kerr, 72 GEO. WASH. L. REV. at 1213-14.
Neither of these examples describes the service that Arch
Wireless provided to the City.
[5] Any lingering doubt that Arch Wireless is an ECS that
retained messages in electronic storage is disposed of by
Theofel v. Farey-Jones, 359 F.3d 1066, 1070 (9th Cir. 2004).
In Theofel, we held that a provider of e-mail services, undis-
putedly an ECS, stored e-mails on its servers for backup pro-
QUON v. ARCH WIRELESS 7015
tection. Id. at 1075. NetGate was the plaintiffs’ Internet
Service Provider (“ISP”). Pursuant to a subpoena, NetGate
turned over plaintiffs’ e-mail messages to the defendants. We
concluded that plaintiffs’ e-mail messages—which were
stored on NetGate’s server after delivery to the recipient—
were “stored ‘for purposes of backup protection’ . . . . within
the ordinary meaning of those terms.” Id. (citation omitted).
[6] The service provided by NetGate is closely analogous
to Arch Wireless’s storage of Appellants’ messages. Much
like Arch Wireless, NetGate served as a conduit for the trans-
mission of electronic communications from one user to
another, and stored those communications “as a ‘backup’ for
the user.” Id. Although it is not clear for whom Arch Wireless
“archived” the text messages—presumably for the user or
Arch Wireless itself—it is clear that the messages were
archived for “backup protection,” just as they were in Theofel.
Accordingly, Arch Wireless is more appropriately categorized
as an ECS than an RCS.
Arch Wireless contends that our analysis in Theofel of the
definition of “backup protection” supports its position. There,
we noted that “[w]here the underlying message has expired in
the normal course, any copy is no longer performing any
backup function. An ISP that kept permanent copies of tem-
porary messages could not fairly be described as ‘backing up’
those messages.” Id. at 1070. Thus, the argument goes, Arch
Wireless’s permanent retention of the Appellants’ text mes-
sages could not have been for backup purposes; instead, it
must have been for storage purposes, which would require us
to classify Arch Wireless as an RCS. This reading is not per-
suasive. First, 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; instead, the Niekamp
Declaration simply states that copies of the messages are “ar-
chived” on Arch Wireless’s server. More importantly, Theo-
fel’s holding—that the e-mail messages stored on NetGate’s
server after delivery were for “backup protection,” and that
7016 QUON v. ARCH WIRELESS
NetGate was undisputedly an ECS—forecloses Arch Wire-
less’s position.
[7] We hold that Arch Wireless provided an “electronic
communication service” to the City. The parties do not dis-
pute that Arch Wireless acted “knowingly” when it released
the transcripts to the City. When Arch Wireless knowingly
turned over the text-messaging transcripts to the City, which
was a “subscriber,” not “an addressee or intended recipient of
such communication,” it violated the SCA, 18 U.S.C.
§ 2702(a)(1). Accordingly, judgment in Appellants’ favor on
their claims against Arch Wireless is appropriate as a matter
of law, and we remand to the district court for proceedings
consistent with this holding.
B. Fourth Amendment
Appellants assert that they are entitled to summary judg-
ment on their Fourth Amendment claim against the City, the
Department, and Scharf, and on their California constitutional
privacy claim against the City, the Department, Scharf, and
Glenn. Specifically, Appellants agree with the district court’s
conclusion that they had a reasonable expectation of privacy
in the text messages. However, they argue that the issue
regarding Chief Scharf’s intent in authorizing the search never
should have gone to trial because the search was unreasonable
as a matter of law. We agree.
[8] “The ‘privacy’ protected by [Article I, Section 1 of the
California Constitution] is no broader in the area of search
and seizure than the ‘privacy’ protected by the Fourth
Amendment . . . .” Hill v. Nat’l Collegiate Ath. Ass’n, 7 Cal.
4th 1, 30 n.9 (1994). Accordingly, our analysis proceeds
under the Fourth Amendment to the United States Constitu-
tion. The Fourth Amendment protects the “right of the people
to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” U.S. CONST.
amend. IV. “[T]he touchstone of the Fourth Amendment is
QUON v. ARCH WIRELESS 7017
reasonableness.” United States v. Kriesel, 508 F.3d 941, 947
(9th Cir. 2007) (citing Samson v. California, 126 S.Ct. 2193,
2201 n.4 (2006)). Under the “general Fourth Amendment
approach,” we examine “the totality of the circumstances to
determine whether a search is reasonable.” Id. “The reason-
ableness of a search is determined by assessing, on the one
hand, the degree to which it intrudes upon an individual’s pri-
vacy and, on the other, the degree to which it is needed for the
promotion of legitimate governmental interests.” United
States v. Knights, 534 U.S. 112, 118-19 (2001) (internal quo-
tation marks omitted).
[9] “Searches and seizures by government employers or
supervisors of the private property of their employees . . . are
subject to the restraints of the Fourth Amendment.”
O’Connor, 480 U.S. at 715. In O’Connor, the Supreme Court
reasoned that “[i]ndividuals do not lose Fourth Amendment
rights merely because they work for the government instead
of a private employer.” Id. at 717. However, the Court also
noted that “[t]he operational realities of the workplace . . .
may make some employees’ expectations of privacy unrea-
sonable.” Id. For example, “[p]ublic employees’ expectations
of privacy in their offices, desks, and file cabinets . . . may be
reduced by virtue of actual office practices and procedures, or
by legitimate regulation.” Id. The Court recognized that,
“[g]iven the great variety of work environments in the public
sector, the question whether an employee has a reasonable
expectation of privacy must be addressed on a case-by-case
basis.” Id. at 718.
Even assuming an employee has a reasonable expectation
of privacy in the item seized or the area searched, he must
also demonstrate that the search was unreasonable to prove a
Fourth Amendment violation: “public employer intrusions on
the constitutionally protected privacy interests of government
employees for noninvestigatory, work-related purposes, as
well as for investigations of work-related misconduct, should
be judged by the standard of reasonableness under all the cir-
7018 QUON v. ARCH WIRELESS
cumstances.” Id. at 725-26. Under this standard, we must
evaluate whether the search was “justified at its inception,”
and whether it “was reasonably related in scope to the circum-
stances which justified the interference in the first place.” Id.
at 726 (internal quotation marks omitted).
1. Reasonable Expectation of Privacy
[10] The extent to which the Fourth Amendment provides
protection for the contents of electronic communications in
the Internet age is an open question. The recently minted stan-
dard of electronic communication via e-mails, text messages,
and other means opens a new frontier in Fourth Amendment
jurisprudence that has been little explored. Here, we must first
answer the threshold question: Do users of text messaging
services such as those provided by Arch Wireless have a rea-
sonable expectation of privacy in their text messages stored
on the service provider’s network? We hold that they do.
In Katz v. United States, 389 U.S. 347 (1967), the govern-
ment placed an electronic listening device on a public tele-
phone booth, which allowed the government to listen to the
telephone user’s conversation. Id. at 348. The Supreme Court
held that listening to the conversation through the electronic
device violated the user’s reasonable expectation of privacy.
Id. at 353. In so holding, the Court reasoned, “One who occu-
pies [a phone booth], shuts the door behind him, and pays the
toll that permits him to place a call is surely entitled to assume
that the words he utters into the mouthpiece will not be broad-
cast to the world. To read the Constitution more narrowly is
to ignore the vital role that the public telephone has come to
play in private communication.” Id. at 352. Therefore, “[t]he
Government’s activities in electronically listening to and
recording the petitioner’s words violated the privacy upon
which he justifiably relied while using the telephone booth
and thus constituted a ‘search and seizure’ within the meaning
of the Fourth Amendment.” Id. at 353.
QUON v. ARCH WIRELESS 7019
On the other hand, the Court has also held that the govern-
ment’s use of a pen register—a device that records the phone
numbers one dials—does not violate the Fourth Amendment.
This is because people “realize that they must ‘convey’ phone
numbers to the telephone company, since it is through tele-
phone company switching equipment that their calls are com-
pleted.” Smith v. Maryland, 442 U.S. 735, 742 (1979). The
Court distinguished Katz by noting that “a pen register differs
significantly from the listening device employed in Katz, for
pen registers do not acquire the contents of communications.”
Id. at 741.
This distinction also applies to written communications,
such as letters. It is well-settled that, “since 1878, . . . the
Fourth Amendment’s protection against ‘unreasonable
searches and seizures’ protects a citizen against the warrant-
less opening of sealed letters and packages addressed to him
in order to examine the contents.” United States v. Choate,
576 F.2d 165, 174 (9th Cir. 1978) (citing Ex parte Jackson,
96 U.S. 727 (1877)); see also United States v. Jacobsen, 466
U.S. 109, 114 (1984) (“Letters and other sealed packages are
in the general class of effects in which the public at large has
a legitimate expectation of privacy.”). However, as with the
phone numbers they dial, individuals do not enjoy a reason-
able expectation of privacy in what they write on the outside
of an envelope. See United States v. Hernandez, 313 F.3d
1206, 1209-10 (9th Cir. 2002) (“Although a person has a
legitimate interest that a mailed package will not be opened
and searched en route, there can be no reasonable expectation
that postal service employees will not handle the package or
that they will not view its exterior” (citations omitted)).
[11] Our Internet jurisprudence is instructive. In United
States v. Forrester, we held that “e-mail . . . users have no
expectation of privacy in the to/from addresses of their mes-
sages . . . because they should know that this information is
provided to and used by Internet service providers for the spe-
cific purpose of directing the routing of information.” United
7020 QUON v. ARCH WIRELESS
States v. Forrester, 512 F.3d 500, 510 (9th Cir. 2008). Thus,
we have extended the pen register and outside-of-envelope
rationales to the “to/from” line of e-mails. But we have not
ruled on whether persons have a reasonable expectation of
privacy in the content of e-mails. Like the Supreme Court in
Smith, in Forrester we explicitly noted that “e-mail to/from
addresses . . . constitute addressing information and do not
necessarily reveal any more about the underlying contents of
communication than do phone numbers.” Id. Thus, we con-
cluded that “[t]he privacy interests in these two forms of com-
munication [letters and e-mails] are identical,” and that, while
“[t]he contents may deserve Fourth Amendment protection
. . . the address and size of the package do not.” Id. at 511.
[12] We see no meaningful difference between the e-mails
at issue in Forrester and the text messages at issue here.6 Both
are sent from user to user via a service provider that stores the
messages on its servers. Similarly, as in Forrester, we also
see no meaningful distinction between text messages and let-
ters. As with letters and e-mails, it is not reasonable to expect
privacy in the information used to “address” a text message,
such as the dialing of a phone number to send a message.
However, users do have a reasonable expectation of privacy
in the content of their text messages vis-a-vis the service pro-
vider. Cf. United States v. Finley, 477 F.3d 250, 259 (5th Cir.
2007) (holding that defendant had a reasonable expectation of
privacy in the text messages on his cell phone, and that he
consequently had standing to challenge the search). That Arch
Wireless may have been able to access the contents of the
messages for its own purposes is irrelevant. See United States
v. Heckencamp, 482 F.3d 1142, 1146-47 (9th Cir. 2007)
(holding that a student did not lose his reasonable expectation
of privacy in information stored on his computer, despite a
6
Because Jeff Quon’s reasonable expectation of privacy hinges on the
OPD’s informal policy regarding his use of the OPD-issued pagers, see
infra pages 7027-29, this conclusion affects only the rights of Trujillo,
Florio, and Jerilyn Quon.
QUON v. ARCH WIRELESS 7021
university policy that it could access his computer in limited
circumstances while connected to the university’s network);
United States v. Ziegler, 474 F.3d 1184, 1189-90 (9th Cir.
2007) (holding that an employee had a reasonable expectation
of privacy in a computer in a locked office despite a company
policy that computer usage would be monitored). For, just as
in Heckencamp, where we found persuasive that there was
“no policy allowing the university actively to monitor or audit
[the student’s] computer usage,” 482 F.3d at 1147, Appellants
did not expect that Arch Wireless would monitor their text
messages, much less turn over the messages to third parties
without Appellants’ consent.
[13] We do not endorse a monolithic view of text message
users’ reasonable expectation of privacy, as this is necessarily
a context-sensitive inquiry. Absent an agreement to the con-
trary, Trujillo, Florio, and Jerilyn Quon had no reasonable
expectation that Jeff Quon would maintain the private nature
of their text messages, or vice versa. See United States v.
Maxwell, 45 M.J. 406, 418 (C.A.A.F. 1996) (“[T]he maker of
a telephone call has a reasonable expectation that police offi-
cials will not intercept and listen to the conversation; how-
ever, the conversation itself is held with the risk that one of
the participants may reveal what is said to others.” (citing
Hoffa v. United States, 385 U.S. 293, 302 (1966))). Had Jeff
Quon voluntarily permitted the Department to review his text
messages, the remaining Appellants would have no claims.
Nevertheless, the OPD surreptitiously reviewed messages that
all parties reasonably believed were free from third-party
review. As a matter of law, Trujillo, Florio, and Jerilyn Quon
had a reasonable expectation that the Department would not
review their messages absent consent from either a sender or
recipient of the text messages.
[14] We now turn to Jeff Quon’s reasonable expectation of
privacy, which turns on the Department’s policies regarding
privacy in his text messages. We agree with the district court
that the Department’s informal policy that the text messages
7022 QUON v. ARCH WIRELESS
would not be audited if he paid the overages rendered Quon’s
expectation of privacy in those messages reasonable.
The Department’s general “Computer Usage, Internet and
E-mail Policy” stated both that the use of computers “for per-
sonal benefit is a significant violation of City of Ontario Poli-
cy” and that “[u]sers should have no expectation of privacy or
confidentiality when using these resources.” Quon signed this
Policy and attended a meeting in which it was made clear that
the Policy also applied to use of the pagers. If that were all,
this case would be analogous to the cases relied upon by the
Appellees. See, e.g., Muick v. Glenayre Elecs., 280 F.3d 741,
743 (7th Cir. 2002) (“[Employer] had announced that it could
inspect the laptops that it furnished for the use of its employ-
ees, and this destroyed any reasonable expectation of privacy
that [employee] might have had and so scotches his claim.”);
Bohach v. City of Reno, 932 F. Supp. 1232, 1234-35 (D. Nev.
1996) (finding a diminished expectation of privacy under the
Fourth Amendment where police department had issued a
memorandum informing employees that messages sent on
city-issued pagers would be “logged on the [department’s]
network” and that certain types of messages were “banned
from the system,” and because any employee “with access to,
and a working knowledge of, the Department’s computer sys-
tem” could see the messages); see also O’Connor, 480 U.S.
at 719 (noting that expectation of privacy would not be rea-
sonable if the employer “had established any reasonable regu-
lation or policy discouraging employees . . . from storing
personal papers and effects in their desks or file cabinets”);
Schowengerdt v. General Dynamics Corp., 823 F.2d 1328,
1335 (9th Cir. 1987) (“We conclude that [the employee]
would enjoy a reasonable expectation of privacy in areas
given over to his exclusive use, unless he was on notice from
his employer that searches of the type to which he was sub-
jected might occur from time to time for work-related pur-
poses.”).
QUON v. ARCH WIRELESS 7023
[15] As the district court made clear, however, such was
not the “operational reality” at the Department. The district
court reasoned:
Lieutenant Duke made it clear to the staff, and to
Quon in particular, that he would not audit their pag-
ers so long as they agreed to pay for any overages.
Given that Lieutenant Duke was the one in charge of
administering the use of the city-owned pagers, his
statements carry a great deal of weight. Indeed,
before the events that transpired in this case the
department did not audit any employee’s use of the
pager for the eight months the pagers had been in
use.
Even more telling, Quon had exceeded the 25,000 character
limit “three or four times,” and had paid for the overages
every time without anyone reviewing the text of the messages.
This demonstrated that the OPD followed its “informal poli-
cy” and that Quon reasonably relied on it. Nevertheless, with-
out warning, his text messages were audited by the
Department. Under these circumstances, Quon had a reason-
able expectation of privacy in the text messages archived on
Arch Wireless’s server.
Appellees argue that, because Lieutenant Duke was not a
policymaker, his informal policy could not create an objec-
tively reasonable expectation of privacy. Moreover, Lieuten-
ant Duke’s statements “were specific to his own bill-
collecting practices” and were “limited to . . . an accounting
audit. He did not address privacy rights.” However, as the dis-
trict court pointed out, “Lieutenant Duke was the one in
charge of administering the use of the city-owned pagers,
[and] his statements carry a great deal of weight.” That Lieu-
tenant Duke was not the official policymaker, or even the
final policymaker, does not diminish the chain of command.
He was in charge of the pagers, and it was reasonable for
7024 QUON v. ARCH WIRELESS
Quon to rely on the policy—formal or informal—that Lieu-
tenant Duke established and enforced.
[16] Appellees also point to the California Public Records
Act (“CPRA”) to argue that Quon had no reasonable expecta-
tion of privacy because, under that Act, “public records are
open to inspection at all times . . . and every person has a right
to inspect any public record.” CAL GOV’T CODE § 6253.
Assuming for purposes of this appeal that the text messages
archived on Arch Wireless’s server were public records as
defined by the CPRA,7 we are not persuaded by Appellees’
argument. The CPRA does not diminish an employee’s rea-
sonable expectation of privacy. As the district court reasoned,
“There is no evidence before the [c]ourt suggesting that
CPRA requests to the department are so widespread or fre-
quent as to constitute ‘an open atmosphere so open to fellow
employees or the public that no expectation of privacy is rea-
sonable.’ ” (quoting Leventhal v. Knapek, 266 F.3d 64, 74 (2d
Cir. 2001) (internal quotation marks omitted)).
[17] The Fourth Amendment utilizes a reasonableness stan-
dard. Although the fact that a hypothetical member of the
public may request Quon’s text messages might slightly
diminish his expectation of privacy in the messages, it does
not make his belief in the privacy of the text messages objec-
tively unreasonable. See Zaffuto v. City of Hammond, 308
F.3d 485, 489 (5th Cir. 2002) (“[Defendant] also argues that
the existence of Louisiana’s public records law and a depart-
ment policy that calls would be taped suggests that it would
not be objectively reasonable for [plaintiff] to expect privacy
in making a personal phone call from work . . . . [The officers
testified that] they understood the policy to mean that only
calls coming into the communications room (where outside
7
The Act defines “public records” as “any writing containing informa-
tion relating to the conduct of the public’s business prepared, owned, used,
or retained by any state or local agency regardless of physical form or
characteristics.” CAL GOV’T CODE § 6252(e).
QUON v. ARCH WIRELESS 7025
citizens would call) were being recorded, not calls from pri-
vate offices. A reasonable juror could conclude, on this evi-
dence, that [plaintiff] expected that his call to his wife would
be private, and that that expectation was objectively reason-
able.”). Therefore, Appellees’ CPRA argument is without
merit.
2. Reasonableness of the Search
Given that Appellants had a reasonable expectation of pri-
vacy in their text messages, we now consider whether the
search was reasonable. We hold that it was not.
The district court found a material dispute concerning the
“actual purpose or objective Chief Scharf sought to achieve in
having Lieutenant Duke perform the audit of Quon’s pager.”
It reasoned that if Chief Scharf’s purpose was to uncover mis-
conduct, the search was unreasonable at its inception because
“the officers’ pagers were audited for the period when Lieu-
tenant Duke’s informal, but express policy of not auditing
pagers unless overages went unpaid was in effect.” The dis-
trict court further reasoned, however, that if the purpose was
to determine “the utility or efficacy of the existing monthly
character limits,” the search was reasonable because “the
audit was done for the benefit of (not as a punishment against)
the officers who had gone over the monthly character limits.”
Concluding that a genuine issue of material fact existed on
this point, the district judge determined that this was a ques-
tion for the jury. The jury found that Chief Scharf’s purpose
was to “determine the efficacy of the existing character limits
to ensure that officers were not being required to pay for
work-related expenses,” rendering a verdict in favor of the
City, the Department, Scharf, and Glenn.
Given that a jury has already found that Chief Scharf’s pur-
pose in auditing the text messages was to determine the effi-
cacy of the 25,000 character limit, we must determine—
7026 QUON v. ARCH WIRELESS
keeping that purpose in mind—whether the search was never-
theless unconstitutional.
A search is reasonable “at its inception” if there are “rea-
sonable grounds for suspecting . . . that the search is necessary
for a noninvestigatory work-related purpose such as to
retrieve a needed file.” O’Connor, 480 U.S. at 726. Here, the
purpose was to ensure that officers were not being required to
pay for work-related expenses. This is a legitimate work-
related rationale, as the district court acknowledged.
[18] However, the search was not reasonable in scope. As
O’Connor makes clear, a search is reasonable in scope “when
the measures adopted are reasonably related to the objectives
of the search and not excessively intrusive in light of . . . the
nature of the [misconduct].” Id. (internal quotation marks
omitted). Thus, “if less intrusive methods were feasible, or if
the depth of the inquiry or extent of the seizure exceeded that
necessary for the government’s legitimate purposes . . . the
search would be unreasonable . . . .” Schowengerdt, 823 F.2d
at 1336. The district court determined that there were no less-
intrusive means, reasoning that talking to the officers before-
hand or looking only at the numbers dialed would not have
allowed Chief Scharf to determine whether 25,000 characters
were sufficient for work-related text messaging because that
required examining the content of all the messages. Therefore,
“the only way to accurately and definitively determine
whether such hidden costs were being imposed by the
monthly character limits that were in place was by looking at
the actual text-messages used by the officers who exceeded
the character limits.”
[19] We disagree. There were a host of simple ways to ver-
ify the efficacy of the 25,000 character limit (if that, indeed,
was the intended purpose) without intruding on Appellants’
Fourth Amendment rights. For example, the Department
could have warned Quon that for the month of September he
was forbidden from using his pager for personal communica-
QUON v. ARCH WIRELESS 7027
tions, and that the contents of all of his messages would be
reviewed to ensure the pager was used only for work-related
purposes during that time frame. Alternatively, if the Depart-
ment wanted to review past usage, it could have asked Quon
to count the characters himself, or asked him to redact per-
sonal messages and grant permission to the Department to
review the redacted transcript. Under this process, Quon
would have an incentive to be truthful because he may have
previously paid for work-related overages and presumably
would want the limit increased to avoid paying for such over-
ages in the future. These are just a few of the ways in which
the Department could have conducted a search that was rea-
sonable in scope. Instead, the Department opted to review the
contents of all the messages, work-related and personal, with-
out the consent of Quon or the remaining Appellants. This
was excessively intrusive in light of the noninvestigatory
object of the search, and because Appellants had a reasonable
expectation of privacy in those messages, the search violated
their Fourth Amendment rights.
3. Qualified Immunity for Chief Scharf
Chief Scharf asserts that, even if we conclude that he vio-
lated Appellants’ Fourth Amendment and California constitu-
tional privacy rights, he is entitled to qualified immunity. We
agree.
When determining whether qualified immunity applies, we
engage in the following two-step inquiry. First, we ask,
“[t]aken in the light most favorable to the party asserting the
injury, do the facts alleged show the officer’s conduct violated
a constitutional right?” Saucier v. Katz, 533 U.S. 194, 201
(2001). If we answer this question in the affirmative, as we do
here, we then proceed to determine “whether the right was
clearly established.” Id. “This inquiry . . . must be undertaken
in light of the specific context of the case, not as a broad gen-
eral proposition.” Id. Specifically, “[t]he relevant, dispositive
inquiry in determining whether a right is clearly established
7028 QUON v. ARCH WIRELESS
is whether it would be clear to a reasonable officer that his
conduct was unlawful in the situation he confronted.” Id. at
202.
Chief Scharf argues that, “[i]n 2002, there was no clearly
established law from the Supreme Court or our Circuit gov-
erning the right of a government employer to review text mes-
sages on government-issued pagers in order to determine
whether employees are engaging in excessive personal use of
the pagers while on duty.” Chief Scharf misconstrues Saucier.
While there may be no case with a holding that aligns per-
fectly with the factual scenario presented here, it was clear at
the time of the search that an employee is free from unreason-
able search and seizure in the workplace. See, e.g., O’Connor,
480 U.S. at 715 (1987); Schowengerdt, 823 F.2d at 1335(1987); Ortega v. O’Connor, 146 F.3d 1149, 1157 (9th Cir.
1998) (“[I]t was clearly established in 1981 that, in the
absence of an accepted practice or regulation to the contrary,
government employees . . . had a reasonable expectation of
privacy in their private offices, desks, and file cabinets,
thereby triggering the protections of the Fourth Amendment
with regard to searches and seizures.”).
[20] Nevertheless, we ultimately agree with Chief Scharf
because, at the time of the search, there was no clearly estab-
lished law regarding whether users of text-messages that are
archived, however temporarily, by the service provider have
a reasonable expectation of privacy in those messages. There-
fore, Chief Scharf is entitled to qualified immunity.
4. Statutory Immunity on the California Constitutional
Claim
The City and the Department contend that they are shielded
from liability on the California constitutional claim. We con-
clude that the district court correctly determined that the City
and the Department are not protected by statutory immunity.
QUON v. ARCH WIRELESS 7029
California Government Code section 821.6 provides that
“[a] public employee is not liable for injury caused by his
instituting or prosecuting any judicial or administrative pro-
ceeding within the scope of his employment, even if he acts
maliciously and without probable cause.” “The policy behind
section 821.6 is to encourage fearless performance of official
duties. State officers and employees are encouraged to inves-
tigate and prosecute matters within their purview without fear
of reprisal from the person or entity harmed thereby.” Shoe-
maker v. Myers, 2 Cal. App. 4th 1407, 1424 (1992) (citations
omitted). Immunity “also extends to actions taken in prepara-
tion for formal proceedings. Because investigation is an
essential step toward the institution of formal proceedings, it
is also cloaked with immunity.” Amylou R. v. County of Riv-
erside, 28 Cal. App. 4th 1205, 1209-10 (1994) (internal quo-
tation marks omitted).
[21] Although Chief Scharf ordered an “investigation” in
the ordinary sense of the word, the investigation never could
have led to a “judicial or administrative proceeding” because
Lieutenant Duke’s informal policy permitted officers to use
the pagers for personal purposes and to exceed the 25,000
character limit. Thus, Quon could have committed no miscon-
duct, a prerequisite for a formal proceeding against him. As
such, the City’s and Department’s conduct does not fall
within California Government Code section 821.6, and they
are not entitled to statutory immunity.
V. CONCLUSION
As a matter of law, Arch Wireless is an “electronic commu-
nication service” that provided text messaging service via
pagers to the Ontario Police Department. The search of
Appellants’ text messages violated their Fourth Amendment
and California constitutional privacy rights because they had
a reasonable expectation of privacy in the content of the text
messages, and the search was unreasonable in scope. While
Chief Scharf is shielded by qualified immunity, the City and
7030 QUON v. ARCH WIRELESS
the Department are not shielded by statutory immunity. In
light of our conclusions of law, we affirm in part, reverse in
part, and remand to the district court for further proceedings
on Appellants’ Stored Communications Act claim against
Arch Wireless, and their claims against the City, the Depart-
ment, and Glenn under the Fourth Amendment and California
Constitution.
Because we hold that Appellants prevail as a matter of law
on their claims against Arch Wireless, the City, the Depart-
ment, and Glenn, we need not reach their appeal from the
denial of their motions to alter or amend the judgment and for
a new trial under Federal Rule of Civil Procedure 59. The par-
ties shall bear their own costs of appeal.
AFFIRMED in part, REVERSED in part, and
REMANDED for Further Proceedings.