Guest Column: Quon v. Arch Wireless Challenges Employer Investigation Rights When Using SaaS Communications

The 9th Circuit of Appeals reversed a district court ruling, Quon v. Arch Wireless, in which a wireless text messaging service turned over message transcripts to their customer, the Ontario Police Department, during an investigation on an officer's excessive use of the department provided pager. The fact pattern has some twists and turns, but buried within the opinion are issues that are worth exploring for every corporation contemplating out-sourcing their communications via SaaS or other external provider.

To summarize the case, Officer Quon overran the 25,000 character allocation on his departmental pager. After paying for the monthly overages 3-4 times, a supervisor requested the prior month's transcript to determine how much of the overage was personal usage, a violation of computer usage policy. Because of an unofficial policy of not auditing the text message contents if the officer paid the overage fees, the court found that Officer Quon and the others caught up in his personal, overtly sexual text messages had a reasonable expectation of privacy, despite having signed a typical "Computer Usage, Internet and Email Policy" to the contrary.

Using a SaaS email or archiving provider such as Estorian's LookingGlass should not preclude you from monitoring and investigating your corporate email, but it should warrant a detailed policy review.