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Refusal to Rehear Privacy Case Divides 9th Circuit

(CN) - The 9th Circuit refused to reconsider its ruling that the Ontario Police Department violated a police officer's privacy rights by reading transcripts of his personal text messages - including sexually explicit ones - sent from a work-issued pager. Defending the decision against a critical dissent, Judge Wardlaw retorted, "No poet ever interpreted nature as freely as Judge Ikuta interprets the record on this appeal."

The court issued a two-page order stating that the petition for a rehearing en banc failed to garner enough votes, sparking a heated debate among the judiciary.

Dissenting Judge Ikuta wrote that the three-judge panel's decision "improperly hobbles government employers from managing their workforces" and "conflicts with binding Supreme Court precedent" on Fourth Amendment law.

In defense of the panel ruling, Judge Wardlaw wrote: "No poet ever interpreted nature as freely as Judge Ikuta interprets the record on this appeal. The dissent is not bound by the facts, even those found by the jury; nor is it confined to the actual fact-driven Fourth Amendment holding."

The underlying case centered on the Ontario Police Department's decision to review text messages archived in Arch Wireless' computer network. It claimed it needed to read the messages in order to determine how much money Sgt. Jeff Quon owed the department for exceeding his 25,000-character allotment. Though officers usually paid the department for any overages, the lieutenant who collected the money said he was tired of being a bill collector and decided to investigate Quon's repeat overages.

An Arch Wireless employee said she gave the transcripts to the city, because the city was the contact for Quon's pager.

Quon, his wife and a few other recipients of Quon's text messages sued the department and Arch Wireless for invasion of privacy and violations of the Stored Communications Act.

A three-judge panel said the department had violated the Fourth Amendment and had ignored plenty of less-intrusive alternatives, such as asking Quon to redact his personal messages before reading the transcripts. Reading the full transcripts was "excessively intrusive in light of the non-investigatory object of the search," Judge Wardlaw wrote, "and because appellants had a reasonable expectation of privacy in those messages, the search violated their Fourth Amendment rights."

Wardlaw, who had written the panel opinion, also wrote separately to agree with the decision not to rehear the case - and to point out the dissent's "seriously flawed" arguments. Wardlaw repeatedly used words such as "misstates," "distorts," "oversimplifies," "incorrect" and "untrue" in characterizing the dissenting opinion.

"The dissent's lofty views of how the City of Ontario Police Department (OPD) should have guided the use of its employees' pagers are far removed from the gritty operational reality at OPD," Wardlaw wrote.

"By stripping public employees of all rights to privacy regardless of the actual operational realities of each workplace, the dissent would have us create a far broader rule than Supreme Court precedent allows. The majority of our court properly rejected the dissenting judges' efforts to do so."

Judges O'Scannlain, Kleinfeld, Tallman, Callahan, Bea and N.R. Smith joined the dissenting opinion.

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