The court leaned heavily on the fact that the texting service was outside of the company and, therefore, not like an internally controlled email server. I know of at least one large telecomm company that created and deployed its own internal IM system and then shut down use of all others within their network as of .... 7 years ago? I wonder if they were already wondering about how externally owned communication services would be handled in the courts. The 9th gets overturned something like 85% of the time it goes to the Supremes. I don't know if this will get that far anytime soon, but it has "overturn" written all over it. Taken to the extreme, this could be taken to suggest that an employer who provides employees with mobile phones is not entitled to the list of calls made with that phone since the employer doesn't own the mobile phone service and that doesn't make any sense. Sooner or later, someone's job will be on the line over something like that and either they will a labor organization or an interest group (e.g., electronic frontiers, ACLU) backing them and this will go the distance later if not now.
i actually think the ruling is much narrower than the media is reporting. the court seems to say that the police department would have been all set if it had stuck with its formal policy. if it had, the employee wouldn't have had an expectation of privacy. but a lieutenant had his own informal policy that said text messages wouldn't be checked unless the officers refused to pay for the overage charges. that's what undercut the formal policy.
also i think attaining the numbers dialed on an employee's mobile phone won't be a problem since the court said phone numbers aren't protected. from what i can tell, if the police department just got the phone numbers dialed using the text messager it would have been in the clear. instead the police department got the content of the messages.
Whew! Nice follow up, Reg. I read the whole thing and it restores my faith in the judiciary, even the 9th Circuit.
This kind of thing happens in employment law regularly, although usually without the constitutional overtones. Employers get in trouble when they don't enforce their own policies or make a mess of them with an undocumented set of exceptions over time (generally without updating the policy to reflect how it actually plays out in real life). Eventually, the undocumented mess of exceptions opens the door to disparate treatment and it can be really, really difficult to convince a jury that a harmless coincidence exists.