Jeff QUON, Jerilyn Quon, April Florio, Doreen Klein, and Steve Trujillo, Plaintiffs, v. ARCH WIRELESS OPERATING COMPANY, INC.; City of Ontario; Ontario Police Department; Lloyd Scharf, and Debbie Glenn, Defendants No. EDCV 03-199-SGL United States District Court, C.D. California Signed March 08, 2006 Counsel Michael A. Morguess, Castillo Harper APC, Riverside, CA, Michael A. McGill, Adams, Ferrone and Ferrone, Westlake Village, CA, for Plaintiffs. Jason Alan Cole, Schaffer Lax McNaughton and Chen, Susan S. Azad, Latham and Watkins LLP, Kent L. Richland, Kent J. Bullard, Greines Martin Stein & Richland, Los Angeles, CA, Jennifer C. Archie, Pro Hac Vice, Matthew A. Brill, Pro Hac Vice, Latham & Watkins LLP, Washington, DC, Celeste Brustowicz, Dimitrios C. Rinos, Rinos and Martin, Tustin, CA, Bruce Emery Disenhouse, Disenhouse Law APC, Riverside, CA, for Defendants. Larson, Stephen G., United States Magistrate Judge ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY, AND DENYING PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT *1 What are the legal parameters to an employee’s a privacy in this interconnected electronic communication age, one in which thoughts and ideas that would have been spoken in person and in private in ages past are now instantly text-messaged to friends and family via hand-held, computer-assisted electronic devices? It is precisely this question that is before the Court in the form of plaintiffs’ motion for summary judgment and defendants’ cross-motion for summary judgment.[1] After reviewing the pleadings and listening to the parties’ oral arguments at a hearing on the instant motions, the Court, for the reasons set forth below, GRANTS IN PART and DENIES IN PART defendants’ motion for summary judgment and DENIES plaintiffs’ motion for summary judgment as moot. Given that the applicable legal standard for considering such motions has long past become firmly established, the Court, in the interests of brevity, will only briefly remind the reader: Summary judgment can be granted only where there is no genuine issue as to any material fact and where the movant is entitled to judgment as a matter of law; in determining whether these conditions are met the record must be viewed in the light most favorable to the party opposing the motion, with the court indulging in all inferences favorable to that party. See Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255-56 (1986); Brookside Assocs. v. Rifkin, 49 F. 3d 490, 492-93 (9th Cir. 1995). This case has its genesis in gross malfeasance which, no one disputes, took place in the Ontario Police Department’s dispatch center in the earlier part of this decade. Sally Bors, a dispatcher, was under investigation in September, 2002, for providing information to a boyfriend who was a member of the Hell’s Angel motorcycle gang regarding police investigative activity viz via the Hell’s Angels in general and the boyfriend in particular. A sting operation was performed to ferret out this corruption on September 16, 2002. A narcotics officer called in the license plate of a Hell’s Angel member to Bors. Rather than contacting the Hells Angel member directly, Bors used her pager to text message another dispatcher, Angela Santos, requesting that she contact the Hell’s Angel member and let him know he was being followed by a narcotics agent. After doing so, Santos contacted another dispatcher, April Florio, and informed her of what she had done for Bors. Florio then contacted a fellow dispatcher, Doreen Klein, about the Bors/Santos activities. Neither Florio nor Klein reported to any personnel, supervisory or otherwise, in the police department about this malfeasance. The following day, when Klein and Florio arrived at the dispatch center, they were asked to report to their supervisor’s office where they were asked by Sergeant Deborah Glenn to hand over their personal cell phone and pager. Two weeks earlier the department had issued a memorandum to those working in the dispatch center that, “[e]ffective immediately and until further notice, use of all cell phones and pagers within the Dispatch Center will be prohibited. On duty personnel shall leave pagers and cell phones in their lockers and check them on their breaks.” (Defs. Ex. EE). The pagers and cell phones were kept on a table in an interrogation room where Florio and Klein were separately interviewed by internal affairs personnel. The reason proffered for the seizure of the duo’s pagers and cell phones was to “preclude [them] ... from covertly communicating with one another before, during, or after each of their interviews” so they could not coordinate their stories. (Defs’ Mot. Summ. J. at 43; Pls’ Ex. G at 44). The pagers and cell phones were apparently returned to Klein and Florio following the interrogation. Klein followed by Florio and then Santos were interviewed by Internal Affairs personnel. During their interviews Klein and Florio “played dumb” with respect to the malfeasance in the dispatch center. When Santos was interviewed she confessed to her involvement, informing internal affairs personnel that, at the behest of Bors, she had contacted a Hell’s Angel member about him being followed by police and that she relayed the same to Florio. The next day, September 18, 2002, Florio and Klein were re-interviewed by Internal Affairs. Only when confronted with the fact that, perSantos’ confession, each had earlier lied did they acknowledge that they too were aware that Santos had contacted a Hell’s Angel member to inform him that he was being followed by the police. Klein and Florio were later terminated from their positions on account of their misconduct. *2 In the midst of this dispatch center investigation, a separate event took place that later would become embroiled in that investigation. The event in question involved the department’s audit of the text messages sent to and sent from police sergeant Jeff Quon’s city-issued pager for the period of August to September, 2002, due to him exceeding the monthly character limits for his pager during that period. The connection between this audit and the Bors investigation stems from the fact that, at the time, Jeff Quon, who was married to Jerilyn Quon, another Ontario police officer, was having an extra-martial affair with Florio. Some prefatory remarks at this point concerning the city-issued pagers is warranted. In October, 2001, the City of Ontario entered into a contract with Arch Wireless Operating Company, Inc. (“Arch Wireless”), subscribing for the provision of two-way alphanumeric text-messaging pagers for its employees as well as other wireless communication services incident to the use of such pagers. As part of the contract, the City paid Arch Wireless a monthly subscription rate keyed to the pagers being allotted 25,000 characters, be it letters, numbers, or other symbols, per month with the City having to pay extra for any overages. The City issued such a pager to plaintiffs Jeff Quon and Steve Trujillo, both of whom were sergeants with the City’s SWAT team. The issuance of such city-owned pagers to members of the SWAT team was to allow for the officers to communicate with other members of the SWAT team in an effort to enable better coordination and more rapid and effective response to emergencies by providing situational awareness to the team as to other members whereabouts. Text messages sent on the pagers operate as follows over the Arch Wireless network: 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 network 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 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 message 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 owned by Arch Wireless. The message is then sent from the transmitting station via a radio frequency transmission, to the recipient pager where it can be read by the user of the recipient pager. (Defs’ Affidavits in Support Mot. Summ. J., Decl. Steven Niehamp ¶¶ 3-7). As part of its provision of computer desktop equipment to its personnel, the City had its employees, including Jeff Quon, review and sign a written statement of the City’s policy concerning its employees’ use of this equipment. The statement, entitled “Computer Usage, Internet and E-mail Policy,” states that the City’s policy encompasses “[t]he use of any City-owned computer equipment, computer peripherals, City networks, the Internet, e-mail services or other City computer related services.” The policy itself is outlined as follows: 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 monitor and log all network activity including e-mail and Internet use, with or without notice. Users should have no expectation of privacy or confidentiality when using these resources. *3 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 considered 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. (Defs’ Ex. M at 2). Jeff Quon received a copy of this written policy and signed a form acknowledging he had reviewed and understood the policy on March 18, 2000, a full two and half years before the events in question in this case. (Defs’ Ex. L). After the provision of city-owned pagers to police officers sometime in the end of 2001 or beginning of 2002, the City’s supervising personnel made statements concerning its use viz via the City’s computer usage policy to the staff in general and to Jeff Quon in particular. At a supervisory staff meeting on April 18, 2002, at which Jeff Quon was present, the person in charge of the use and provision of the Department’s electronic equipment, Lieutenant Steven Duke, reminded those in attendance that “two-way pagers are considered e-mail messages. This means that messages would fall under the City’s policy as public information and eligible for auditing.” This statement was later memorialized in a memorandum sent to all supervisory personnel, including Jeff Quon and Steve Trujillo. Lieutenant Duke’s representation that the department could directly audit the pagers was not entirely accurate. The City supervisory staff itself did not have the ability to review the contents of the text messages sent or received by the pagers issued to its employees. (Pls’ Ex. D at 23). They could not access what transpired over the pagers from the supervisory staff own’s computers, nor could they log onto Arch Wireless’ network from their computers to do the same. Instead, to review the contents of the text message sent or received from one of the city-owned pagers, supervisory staff would have to contact an Arch Wireless representative and request for them to generate a copy of the transcripts of those messages. (Pls’ Ex. D at 36). Insofar as overage charges, it appears that the City - through the actions of Lieutenant Duke - had an unstated policy of agreeing not to audit the use of the pager whenever overages existed so long as the personnel in question paid the City for the overage. Only when the personnel in question disputed the overages - either claiming that the use was work-related or otherwise - did Lieutenant Duke make it clear that he would endeavor to audit the contents of the messages sent and received on the pager. As Lieutenant Duke commented, “[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.” (Pls’ Ex. D at 13). Lieutenant Duke relayed this unwritten policy regarding the conditions under which an audit of a pager would take place for overages to Jeff Quon. Within the first or second billing cycle after the pager was issued to Quon, Lieutenant Duke approached him because he had exceeded his maximum number of allotted characters. Lieutenant Duke, during this conversation, told Quon that the text messages sent over the City-owned pager “were considered e-mail and could be audited.” (Pls’ Ex. M at 4). He, however, went on to say “that it was not his intent to audit employee’s text messages to see if the overage is due to work related transmissions.” (Pls’ Ex. D at 69). Instead, Qoun “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.” (Pls’ Ex. D at 69). Such an approach was Lieutenant Duke’s generous way of streamlining administration and oversight over the use of the pagers because, as he reminded Quon, he could, “if anybody wished to challenge their overage, ... audit the text transmissions to verify how many were non-work related.” (Pls’ Ex. M at 4). As Lieutenant Duke explained in his deposition: “[W]hat 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 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.” (Pls’ Ex. D at 70). *4 Lieutenant Duke testified that this practice ended in August, 2002, because he made it known to Chief Lloyd Scharf that he had grown “tired of being a bill collector with guys going over the allotted amount of characters on their text pagers.” (Pls’ Ex. N at 15). The police chief responded by asking whether Lieutenant Duke “wanted to review the transcripts to make a determination whether they had personal use versus - overage or increase the amount of characters, plus - so we just kind of stopped the practice.” (Pls’ Ex. D at 55). As another participant to the meeting recalled, “The chief said - or had asked [Duke] if these can be audited to see if these are work-related, and if so work-related, then obviously they’re not an issue. However, if they’re not work-related, that he wanted that looked into and addressed as to why people are using the pagers in excess of the amount of monthly characters that were allowed.” (Pls’ Ex. N at 15). Two employees’ pagers exceeded the character limit for the billing period following this change in policy - Jeff Quon and another officer who is not a party to this case. Arch Wireless was contacted by the City’s contact person requesting the transcripts for the two pagers during the billing period in question - August 1, 2002, to September 31, 2002. The Arch Wireless representative confirmed that the pagers were owned by the City and that the request came from the designated contact person. After satisfying itself of these two points, Arch Wireless provided transcripts of the contents of the messages sent and received by the pagers during the time in question. Many of the text messages sent and/or received by Quon’s pager were, to say the least, sexually explicit in nature. Some of these messages were directed to or from his wife, Jerilyn Quon, while others were directed to or from his mistress, Florio, or his co-worker, Trujillo. Around the same time that a transcript of Quon’s text messages where ordered up, Lieutenant Duke conversed with Sergeant Glenn, who was conducting the investigation into the above-described corruption at the dispatch center. At some point during this conversation, Sergeant Glenn informed Lieutenant Duke that she “would like to review [the transcripts] after they were dealt with,” in particular she “wanted to review messages between [Jeff] Quon and ... I believe it was April Florio.” (Pls’ Ex. D at 46). No evidence, however, has been presented that the transcripts were ever provided to Sergeant Glenn or that they were used in the investigation of the dispatch center. The final event of this sordid tale inside the Ontario Police Department concerns Jerilyn Quon’s effort to find employment with the Upland Police Department after the above events transpired. In January, 2003, Jerilyn Quon applied for a position as a police officer with the City of Upland. Her interview with then Upland Police Chief, Martin Thouvenell, on February 11, 2003, apparently went so well that she was told the job was hers and she was sent downstairs immediately afterwards to begin filling out her paperwork. Chief Thouvenell did inform Jerilyn as she was leaving the interview that he had one more interview for the position of a person within the Upland police department. A week and a half later, on February 17, 2003, Jerilyn received a letter dated February 12, 2003, informing her that she did not get the job, but that it was being filled by a person in-house. Jerilyn, apparently borne by her perception of how well her interview had gone, doubted the veracity of this explanation. Instead, she became convinced that the reason she was turned down for the position must have been because Chief Scharf called Chief Thouvenell and informed him that Jerilyn was suing him in the instant matter for the divulgence of the text messages from her now-ex-husband’s pager. Plaintiffs then filed the instant suit on February 25, 2003, against Arch Wireless, and a host of governmental entities and employees - the City of Ontario, the Ontario Police Department, its Chief of Police, Lloyd Scharf, and Sergeant Glenn (hereinafter “governmental defendants”) - asserting federal claims for violations of the Stored Communications Act and the Fourth Amendment, and state law claims for violations of the California constitution, California Penal Code section 629.86, invasion of privacy, and defamation. A. STORED COMMUNICATIONS ACT *5 In 1986, Congress passed the Electronic Communications Privacy Act (“ECPA”) “to afford privacy protection to electronic communications” by amending Title III to the Omnibus Crime Control and Safe Streets Act of 1968 (also known as the federal Wiretap Act), which up to that point had only provided such statutory protection to land-line “wire and oral communications.” Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 874 (9th Cir. 2002). As part of this package of statutory measures to provide some protection to electronic communications, Congress enacted as Title II to the ECPA the Stored Communications Act (“SCA”), which as its name implies was “designed to ’address[ ] access to stored wire and electronic communications and transactional records.” Id. Towards that end the statute prohibits any “person or entity providing” either “an electronic communication service” or a “remote computing service” to “the public” from “knowingly divulg[ing] to any person or entity the contents of a communication while in electronic storage by that service,” or “divulg[ing] a record or other information pertaining to a subscriber or customer of such service.” 18 U.S.C. § 2702(a). To fulfill the promise these statutory protections were meant to afford Congress allowed a private right of action to any “person aggrieved by any violation of this chapter.” 18 U.S.C. § 2707(a). The Ninth Circuit has noted that, given the statute’s age and thus preceding as it did the mass use of the Internet and the world wide web, its framework at times is “ill-suited to address modern forms of communication,” oftentimes requiring courts to “struggle[ ] to analyze problems involving modern technology within the confines of this statutory framework, often with unsatisfying results.” Konop, 302 F.3d at 874. Such a clash of technology and the current state of the law takes center stage in this case. To begin, it is doubtful that any of the governmental defendants as they are currently charged can be held liable for a violation of the SCA. None would fall within section 2702(a)’s prohibition as they do not provide any type of electronic service to the public. At best, some were involved in requisitioning such service to be provided to their employees from Arch Wireless. This factual circumstance is far removed from what lies at the heart of section 2702’s prohibitions, where it is even debatable whether an online retailer is subject to section 2702. Compare Dyer v. Northwest Airlines Corp., 334 F.Supp.2d 1196 (D. N.D. 2004)(holding that ECPA does not “encompass businesses selling traditional products and services online”); Andersen Consulting LLP v. UOP, 991 F. Supp. 1041 (N.D. Ill. 1998)(same) with United States v. Mullins, 992 F.2d 1472, 1478 (9th Cir. 1993) (summarily holding without analysis that an airline, through its computerized reservation system, was an electronic communications service provider). Here, the governmental defendants’ linkage to the electronic service in question is even more tenuous - they provide no electronic services themselves, but purchase the same from a third party, Arch Wireless. Holding the governmental defendants as being service providers would stretch the ECPA too far.[2] Plaintiffs seek to ameliorate this defect by arguing that the governmental defendants should be held liable under section 2703(a), which sets precise limits on a governmental entity’s attempt to “require the disclosure by” a service provider “of the contents of a wire or electronic communication” that “is in electronic storage.” Reliance on that statutory provision is misplaced. Section 2703 concerns a governmental entity’s attempt to gain information in electronic storage during the course of a criminal investigation. This criminal investigation nexus is borne out by section 2703’s reference to the need for a grand jury or administrative subpoena, functions associated with ongoing criminal investigations. See 18 U.S.C. § 2703 (b) - (c). Removing all doubt on this point is the section’s call for a showing from the government entity that such disclosure is “relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d). Other courts, including the Ninth Circuit, have similarly commented on the criminal investigation nexus to section 2703’s prohibitions. See Konop, 302 F.3d at 879 (“Section 2703(a) of the SCA details the procedures law enforcement must follow to access the contents of stored electronic communications, but these procedures are considerably less burdensome and less restrictive than those required to obtain a wiretap order under the Wiretap Act” (emphasis added) ); United States v. Councilman, 373 F.3d 197, 208-09 (lst Cir. 2004)(remarking on section 2703 being the law enforcement counterpart to the Wiretap Act’s protections contained in section 2518)(Lipez, J., dissenting), overruled by 418 F.3d 67 (1st Cir. 2005) (en banc). Section 2703 has no application to an employer, who happens to be a governmental agency, in its effort to manage its own workforce by auditing the electronic equipment provided to its employees to determine whether they have engaged in workplace malfeasance. *6 This Court accordingly holds that the governmental defendants do not fall within the statutory prohibitions contained in section 2702(a), that section 2703 has no application to the facts of this case, and, therefore, those defendants are not liable under the Act for any disclosure of the contents of the text messages received or transmitted from Jeff Quon’s pager.[3] This then leaves the service provider’s exposure under the statute. Arch Wireless has invoked as a defense to the SCA claim that such disclosure of the contents of an electronic communication held in electronic storage may be done “with the lawful consent of the originator or an addressee or intended recipient of such communication [in the case of an electronic communication service], or the subscriber in the case of remote computing service.” 18 U.S.C. § 2702(b)(3). Arch Wireless argues that it falls within this exception as it provided a remote computing service and divulged the contents of the text messages on the pager to the subscriber of that service, the City of Ontario. No dispute exists that the City was a subscriber under the statute. What is disputed is whether the service provided by Arch Wireless - that is, of being able to retrieve for its subscribers text messages held in long-term electronic storage on its computers that have been sent over its communication network - constitutes a remote computing service or is more properly characterized as an electronic communication service. If the former, then the City’s consent would serve to absolve Arch Wireless of liability as it was the subscriber to the service. If the latter, then the City’s consent is to no avail as only the consent of the originator or intended recipient of such a message (in this case, the plaintiffs themselves) would suffice for the exception to apply. A remote computing service is defined by the statute as “the provision to the public of computer storage or processing services by means of an electronic communication system.” 18 U.S.C. § 2711(2). The term “electronic communication system” referenced in the definition in turn means, among other things, “any computer facilities or related electronic equipment for the electronic storage of such [electronic] communications.” 18 U.S.C. § 2510(14). By way of comparison, an electronic communications service is labeled as one “which provides to users thereof the ability to send or receive wire or electronic communications.” 18 U.S.C. § 2510(15). To Arch Wireless the service it provides meets the statutory term for a remote computing service as it stored the contents of text messages on its computer - the “computer storage” spoken of in the statute - utilizing Arch Wireless’ computer network via wire and/or radio facilities - the “electronic communication system” noted in the statute. To that end, Arch Wireless compares what it provided to the City of Ontario to that of e-mail, a comparison which the governmental defendants have made both before and after the litigation in this case ensued. The comparison to e-mail is predicated upon Arch Wireless providing long-term storage on its computer network of the text messages sent and received on the City-owned pagers utilizing its communication network. (Def. Arch Wireless Reply at 1 (noting that “opened e-mail that remains on an electronic communications service provider’s system after transmission and receipt be covered by the provisions of the statute relating to ’remote computing services.’ ... Here, the messages sent to Jeff Quon’s city-owned pager had already been ’opened’ and read by Jeff Quon at the time the pager transcripts were requested by the City. As such, ... Arch was providing a ’remote computing service’ and the statutory exception to liability should apply to Arch”) ). That defendants would attempt to make such a comparison is understandable given that e-mail is mentioned repeatedly in conjunction with a remote computing service in the legislative history surrounding the passage of the SCA. See H.R. RPT. NO. 99-647, at 64-65 (1986), S. RPT. No. 99-541, at 3. The comparison, however, is not a perfect fit. As Mr. Niehamp’s declaration makes clear, a message carried over the Arch Wireless network is archived on the company’s computer for long-term storage where it can be retrieved later by company personnel at the request of the pager’s subscriber, in this case the City of Ontario. While this may have the same end result as an e-mail service, in the sense that a message can be recalled that is stored in a third-party’s computer network, there is a notable difference. None of the “e-mailed” text messages stored on Arch Wireless’ network could be directly retrieved or re-accessed by the subscriber or user after having been opened as is the case with traditional e-mail. Rather, such retrieval occurs only with the assistance of Arch Wireless personnel who, at the behest of the subscriber or user, access the company’s network and generate paper copies of the text messages in question for the customer. The question thus becomes whether such immediate linkage between the electronic communication system used by the subscriber/user and the computer storage spoken of in the statute is critical to a service being categorized as a remote computing service. *7 Plaintiffs argue that such inter-connectivity is mandated, claiming that for something to qualify as a remote computing service subscribers must be able to directly access the stored messages on their own without the need for the intervention on the part of Arch Wireless personnel. Nothing in the statute’s text requires such a direct accessibility component to the service. Again, the statute’s definition provides that for something to be considered a remote computing service it need only provide “computer storage or processing services” to the public by utilizing “computer facilities or related electronic equipment.” Nowhere does the definition cabin itself to who or how that computer system is accessed. Rather, it allows equally for a computer system that is simply located’ at an off-site facility separate from the subscriber’s work site as it does for one that also provides for a remote access to that computer system by subscribers of the service. That being said, defendants do acknowledge that reference to the statutory text is “nebulous” as to the accessability argument. (Def. Arch Wireless’s Reply at 1). To assist the Court in answering this question the parties have brought to the Court’s attention a district court opinion that “construed” the statutory language at issue. See Steve Jackson Games, Inc. v. United States Secret Service, 816 F. Supp. 432 (S.D. Tex. 1993). That court’s opinion was short on substance, but long on conclusion. It simply declared, without analysis, that the computer system in that case “was a ‘remote computing service,’ ” but never explained why this was so. Id. at 443. Looking to the facts from that case sheds no light on what distinguished the system in question as being a remote computing service. The system (and the corresponding electronic communications) in question - an e-mail service run on a computer bulletin board - was accessible by the user without the intervention of the web manager of the bulletin board: ”[T]he [board] also offered customers the ability to send and receive private e-mail. Private e-mail was stored on the [board’s] computer’s hard disk drive temporarily, until the addressees ’called’ the [board] (using their computers and modems) and read their mail. After reading their e-mail, the recipients could choose to either store it on the [board’s] computer’s hard drive or delete it.” Steve Jackson Games, Inc. v. United States Secret Service, 36 F.3d 457, 458 (5th Cir. 1994). With such a factual back-drop nothing in that court’s conclusory holding can even remotely suggest that it depended on a remote computing service could exist absent this direct accessibility by the users and/or subscribers. Such accessibility was inherent in the computing system under review before the court in that case and hence, without further elaboration by the court, was not critical to its analysis. This leads the Court to the statute’s legislative history. During the passage of the ECPA both the Senate and the House of Representatives issued reports commenting on various aspects of the legislation, including the reference to “remote computer services.” Congress noted that the purpose for the passage of the ECPA was “to update and clarify Federal privacy protections and standards in light of dramatic changes in new computer and telecommunications technologies.” S. RPT. NO. 99-541, at 1 (1986). Toward that end Congress sought to harmonize the existing statutory framework with the technology and industry standards as they existed in 1987. Congress described such cutting edge technology, which from a modern-day readers perspective would seem antiquated, as follows: Today we have large-scale electronic mail operations, computer-to-computer data transmissions, cellular and cordless telephones, paging devices, and video teleconferencing. A phone call can be carried by wire, by microwave or fiber optics. It can be transmitted in the form of digitalized voice, data or video. Since the divesture of AT&T and deregulation, many different companies, not just common carriers, offer a wide variety of telephone and other communications services. It does not make sense that a phone call transmitted via common carrier is protected by the current federal wiretap statute, while the same phone call transmitted via a private telephone network such as those used by many major U.S. corporations today, would not be covered by the statute. *8 S. RPT. NO. 99-541, at 3 (1986). Given Congress’ understanding of the technological milieu in which it was legislating it is not hard to understand the Ninth Circuit’s observation that the ECPA has become increasingly difficult to square with more modern technological methods of communication. It is equally obvious from the quotation above that Congress had no conception of the type of communication/storage system at issue in this case when it drafted the statute. What Congress did clearly intend, even with its 1987 understanding of the relevant communication technology, was for the statute to cover what it considered at the time to be the two relevant technologies used by businesses and individuals - those which were devoted to direct person to person communications via private or common carriers, and those communications involving computers. This distinction carried over in Congress’ drafting of the SCA. Under the SCA, the centrality that a computer plays in facilitating the communication is key to Congress’ definition of a remote computing service. The word “computer” is used exclusively in the statute when speaking of a remote computing service, be it for storage or processing, or for the related “computer facilities” required to accomplish the communications’ storage. It is one of the few means Congress used to identify and distinguish the definition of a “remote computing service” from an “electronic communication service.” Accordingly, the Court finds at a minimum that a computer must play a central role in facilitating the communication, as the legislative history makes clear that the incidental use of computers in providing the service in question was not envisioned by Congress as constituting a remote computing service: “Remote computing services is not intended to apply to computer services offered by the various telephone company central offices in connection with the routing of telephone calls (such as speed dialing, call forwarding, and three-way dialing).” H.R. RPT. NO. 99-647, at 75 (1986). The central role Arch Wireless’ computer facilities played in accomplishing the storage of the text messages, and then recalling the same upon request by the City, is not challenged in this case, and for that reason places the service they provided closer to a remote computing service. That said, this distinction has lost much of its salience since the passage of the ECPA as computers have become increasingly more central to the operation of various forms of electronic communication. Defense counsel acknowledged at oral argument that such a means of distinguishing between the two statutory terms has become “blurred by the progression of technology” such that, in her view, no “viable” means of differentiating the two exists. Plaintiffs seize upon defense counsel’s gloomy assessment as proof positive that their interpretation of the statute is necessary lest the statutory terms become meaningless. To begin, the Court does not share defense counsel’s view that the statutory terms have become obsolete as, for the reasons outlined below, at least one other distinguishing and still salient characteristic exists. Similarly, plaintiffs’ efforts to breathe life into the statutory terms may have the virtue of maintaining a statutory distinction, but it carries with it the vice of having no support in the statute’s text or legislative history. The legislative history reveals that Congress understood that e-mail had a direct accessibility component, but its recognition of this fact was more a matter of describing how e-mail worked than in defining what was needed for a service to qualify as a remote computing service: *9 In the case of either electronic mail or voice mail, the sender - a user of the service - has necessarily authorized the addressee’s access to the message. The addressee’s acquisition of the message is therefore clearly within the contemplation of section 2701(c)[, excepting from the statute’s prohibitions “conduct authorized ... by a user of that service with respect to a communication of or intended for that user”]. Sometimes the addressee, having requested and received a message, chooses to leave it in storage on the service for re-access at a later time. The Committee intends that, in leaving the message in storage. the addressee should be considered the subscriber or user from whom the system received the communication for storage, and that such communication should continue to be covered by section 2702(a)(2)[, concerning divulgence of communications held in storage on remote computing services]. H.R. Rpt. No. 99-647, at 64-65 (1986)(emphasis added). Nothing in this passage even remotely speaks to Congress expressing a view that only directly accessible e-mail qualified as a remote computing service. The passage simply describes matter of factly how e-mail operates, and then notes that the retrieval of messages held in long-term storage on the computer after being opened still fall within the purview of a remote computing service. The accessability was not critical to this conclusion; rather, it is the question of storage that is key to understanding Congress’ conclusion that the e-mail service in question remained a remote computing service. That this is so one need look to another section of the legislative history. In the Senate Report Congress recognized the possibility that such information in computer storage could be accessible by the subscriber/user, but it also recognized that such access can be given by the service provider after information has been supplied to it by the subscriber or customer. Must such relaying of information by the subscriber or customer be done by them accessing the subscriber’s network or logging a request for the same on their computer network, or can it be phoned in (as in this case)? Congress’ answer was the latter. It noted that computer storage in off-site facilities operated by service providers such as Arch Wireless provide “sophisticated and convenient computing services to subscribers and customers from remote facilities” by allowing “processing [to be] done with the customer or subscriber 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 electronic communication.” S. RPT. No. 99-541, at 10-11 (1986)(emphasis added). Congress viewed the storage of such information on the service provider’s off-site computer to be the critical factor; how that information came to exist on the service provider’s computer, or how that information was later transferred from the provider’s computer to the subscriber does not appear material. The Senate Report’s mention that use of electronic communication to share or transmit this information was “often” the means of transmission necessarily means that it need not always have to be accomplished that way. The sending of written or telephonic requests for transcripts of what is contained on a service provider’s network can similarly accomplish the processing/storage function contemplated by the statute. That Congress would sanction such a means of transmission in a remote computing service casts aside plaintiffs push for a direct accessibility gloss to the statute. Refusing to apply plaintiffs’ statutory gloss does not mean, even with the widespread and pervasive use of computers in facilitating electronic communications this day, that the statutory terms do not remain salient. There is another distinction the statute, as it has been interpreted by the courts, draws between the two terms, and one that is not that surprising given the SCA’s name and purpose - the length of and the purpose for the storage. *10 Courts have interpreted the federal wiretap statute so as to exclude from its coverage the storage of electronic communications no matter how short that storage may entail. See Konop, 302 F.3d at 876 (providing a “narrow definition” of intercept for purposes of the federal wiretap statute such that only the “acquisition of a communication,” be it wire or electronic, “contemporaneous with the transmission” of that communication falls within the scope of the wiretap statute). Thus, in Konop the court held that the “acquisition of email messages stored on an electronic bulletin board system, but not yet retrieved by the intended recipients, was not an interception under the wiretap act.” Id. Rather, even such transitory storage of electronic communications lasting only a few seconds fell within the SCA’s provisions: Storage is a necessary incident to the transmission of electronic communications. Email and other electronic communications are stored at various junctures in various computers between the time the sender types the message and the recipient reads it. ... It is therefore argued that if the term ’intercept’ does not apply to the en route storage of electronic communications, the wiretap act’s prohibition against ’intercepting’ electronic communications would have virtually no effect. While this argument is not without appeal, the language and structure of the ECPA demonstrate that Congress considered and rejected this argument. Congress defined ’electronic storage’ as ’any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof, 18 U.S.C. § 2510(17)(A), indicating that Congress understood that electronic storage was an inherent part of electronic communication. Nevertheless, ... Congress chose to afford stored electronic communications less protection than other forms of communication. Id. at 878 n.6. That the storage of electronic communications was confined to the provisions in the SCA was a deliberate choice by Congress as it “deliberately structured [the ECPA] to afford electronic communications instorage less protection than other forms of communication.” Id. at 877 (emphasis in original). The removal of all stored communications from the coverage of the wiretap statute makes the treatment of stored communications one of the principal focus points in interpreting the SCA. See id. at 888 (Reinhardt, J., dissenting)(at most all acquisitions of the contents of electronic communications would escape the intercept prohibition entirely”). That this is so is not surprising given that the “ECPA ... created the SCA for the express purpose of addressing ’access to stored ... electronic communications and transactional records.” Id. at 879. It therefore should come as no surprise that differences in the length of or the purpose for storing the electronic communication in question would be used by the SCA to differentiate whether the service in question was a remote computing service or an electronic communication service. The Ninth Circuit in Theofel v. Farey-Jones, 359 F.3d 1066 (9th Cir. 2004), in fact drew such a distinction in differentiating between a remote computing service and an electronic communication service. In this regard the court used one of the definitions for the term “electronic storage” in section 2510(17): Our interpretation [of what constitutes electronic storage for purposes of the federal Wiretap Act] also does not render irrelevant the more liberal access standards governing messages stored by remote computing services. The government’s premise is that a message stored by a remote computing service “solely for the purpose of providing storage or computing processing services to [the] subscriber” would also necessarily be stored for purposes of backup protection under section 2510(17) (B)[of the Federal Wiretap Act], and thus would be subject to the more stringent rules governing electronic storage [under the Federal Wiretap Act]. But not all remote computing services are also electronic communications services and, as to those that are not, section 2510(17)(B) is by its own terms inapplicable. The government notes that remote computing services and electronic communications services are ’often the same entities,’ but ’often’ is not good enough to make the government’s point. Even as to remote computing services that are also electronic communications services, not all storage covered by sections 2702(a)(2)(B) and 2703(b)(2)(B) is also covered by section 2510(17)(B)[, setting forth more rigorous access standards for messages stored either temporarily or for purposes of backup protection under the federal Wiretap Act]. A remote computing service might be the only place a user stores his message; in that case, the messages are not stored for backup purposes. *11 Id. at 1076-77. Theofel’s distinction - that the placement of an electronic communication in storage for backup protection keeps the service in question from being a remote computing service - was predicated on the definition of storage contained in section 2510(17)(B). Such reference provides guidance in this case as well. Subsection (17)(A) states that electronic storage includes the “temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof.” Theofel’s reasoning that section 2510(17) de-marks a means of excluding certain services from coverage of a remote computing service would presumably also consider that such intermediate or incidental storage of electronic communications similarly not to be a remote computing service. Absent the type of storage listed in section 2510(17), the only type of storage left available for a remote computing service to provide is long-term storage of communications not incidental to the transmission of the communication itself and not meant for backup protection. Arch Wireless’ service would meet this definition. The storage is long-term, is not incidental to the transmission of the communication itself, and is not meant for backup protection but apparently as a record-keeping mechanism. Such a distinction makes a great deal of sense when considered in conjunction with other portions of the SCA. Section 2702(b)(3), for instance, excepts from the SCA’s prohibition situations in which consent of the sender or receiver of an electronic communication has been given. This exception, however, only applies in the context of an electronic communication service. By confining electronic communication services to, among other things, the incidental storage of communications in the transmission of communications, the statute’s exception is reasonable. Consent would be limited to the individuals who are closest in time to the storage - the causegeneris for the statute’s prohibitions. Such a common sense approach would be placed into question if an electronic communication service could be said to provide long-term storage of communications as well because there would be no need to distinguish between the senders/receivers of the message, on the one hand, and the subscribers to the service, on the other. This leads to another point that neither side in this case acknowledges - that Congress recognized that service providers can offer a wide variety of different services, each one being characterized differently under the statute; the fact that the services are provided by one provider does not transform the characteristics of each service in question. As the Senate Report acknowledges, “different aspects of the same communication might be characterized differently” because “the transmission of data over the telephone is an electronic communication,” but “if the parties use the line to speak to one another between data transmissions, those communications would be wire communications.” S. RPT. NO. 99-541, at 16 (1986). By the same token, different aspects of what is provided by a service provider may be characterized differently. The service allowing, for example, a person to transmit text messages from their pager to the recipient’s pager and for the recipient to read that message may very well be the provision of an electronic communication service. The subsequent long-term storage of that message on the service provider’s computer system for record-keeping purposes by the subscriber may be something entirely different, say a remote computing service. Indeed, the legislative history reveals that Congress understood this duality of the vast array of services providers could offer: “Existing telephone companies and electronic mail companies are providers of electronic communication services. Other services like remote computing services may also provide electronic communication services.” S. RPT. NO. 99-541, at 14 (1986). The parties in this case apparently take an “all or nothing” approach in how to characterize what Arch Wireless provided to the City - either the provision of text-messaging pager/transcript retrieval service was a remote computing system or it was an electronic communications system. From the Court’s reading of the legislative history, Congress took a middle course that was predicated both on whether the use of a computer was central to the service in question as well as the length of storage of the electronic communication in question. Certain aspects of Arch wireless’ service - the provision of text messaging (perhaps including the 72 hour short term storage of such messages before they are opened and read by the recipient) - were the provision of purely electronic communications system, while others - the retrieval of the contents of those text messages kept in long term storage on its computer network after they had been received - were that of a remote computing service. Given that it is the latter service that is at issue in this case, the Court finds that section 2702(b)(3)’s subscriber exception applies. *12 Accordingly, the Court GRANTS summary judgment to defendants on plaintiffs’ SCA claim. B. FOURTH AMENDMENT[4] Aside from the statutory concerns raised by the auditing of Jeff Quon’s pager lies a constitutional question - Was the seizure of these text messages unreasonable per the Fourth Amendment? The parties debate whether Jeff Quon (and the remaining plaintiffs by extension) had a reasonable expectation of privacy in the messages sent to and from his pager. It is acknowledged that the pager was owned by the City, not Quon; that both written and verbal directives had been issued to Quon, that the police department reserved the right to audit the contents of the messages sent and received by the pager; and that Lieutenant Duke had implemented an unwritten policy of foregoing auditing an employee’s pager so long as they agreed to pay the overage charges. In light of this agreed upon factual milieu, all that is left for the Court to determine is the purely legal question of whether Quon had a reasonable expectation that any personal comments he sent or received over the pager would remain private. The Court holds that he did. A public employee’s expectation of privacy is judged against the “operational realities of the workplace” in which the employee works. O’Connor v. Ortega, 480 U.S. 709, 715 (1987). The Court would agree with the defendants’ position that Quon would have no such expectation of privacy if all that was before it was the fact that Quon had been informed in writing and in person that the City considered the use of the pagers to fall within its e-mail policy and that the City would monitor the use of its pagers, including auditing what messages were sent and received by them at any time. All of this would have put any reasonable person on fair notice that the communications that transpired over the pager where in essence open to the public for view. See Schowengerdt v. General Dynamics Corp., 823 F.2d 1328, 1334, 1335 (9th Cir. 1987)(agreeing that “public employees’ expectations of privacy may be reduced by virtue of actual office practices and procedures” such as “notice from his employer that searches of the type to which he was subjected might occur from time to time for work-related purposes”). Thus, for instance, in Bohach v. City of Reno, 982 F. Supp. 1232, 1234-35 (D. Nev. 1996), the district court held that a department memorandum informing employees that messages sent on city-issued pagers would be logged on the network and that certain types of messages were banned in conjunction with the fact that such recording of messages is “part of the ’ordinary course of business’ for police departments” diminished any expectation of privacy the employee had in what he sent or received on his pager. *13 This “operational reality” however was transformed by the failure to enforce this policy by Lieutenant Duke. Apparently not wanting to devote resources to the review of the contents of text messages sent or received from pagers that exceeded the character limit, Lieutenant Duke made it clear to the staff, and to Quon in particular, that he would not audit their pagers 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. Lieutenant Duke in effect turned a blind eye to what purpose an employee used the pager, thereby vitiating the department’s policy of any force or substance. By doing so, Lieutenant Duke effectively provided employees an expectation of privacy in the contents of the text messages they received or sent over their pagers, the only qualifier being that they pay for any overages to guarantee that the messages remain private. See Adams v. City of Battle Creek, 250 F.3d 980, 984 (6th Cir. 2001)(noting no diminished expectation of privacy were “defendants ... did not routinely monitor officer’s pagers or give notice to officers that random monitoring of their department-issued pagers was possible” and “where the policy” against “personal use” of such pagers “had not been enforced”). That the pager in question was owned by the City adds nothing to the analysis. A per se rule that public employees cannot have a reasonable expectation of privacy when using property owned by their employer would be at odds with the Supreme Court’s holding in Ortega v. O’Connor, 480 U.S. 709 (1987). There the Supreme Court held that the employee could have a reasonable expectation of privacy in the personal items he stored in a desk that was presumably owned by his employer. Id. at 719. Expectations of privacy are not tied by reference to property law. See Katz v. United States, 389 U.S. 347, 352 (1967); Schowengerdt, 823 F.2d at 1333 (“Fourth Amendment privacy interests do not, however, turn on property interests .... the [Supreme] Court rejected the contention that those who seek to invoke Fourth Amendment protections must have a property right in the area searched”). Similarly, defendants plea that the use of such equipment in the workplace is entitled to a lesser expectation of privacy due to the “community” or “social norms” - specifically, that “with the proliferation of” various electronic communication systems “in the work place, it is - extremely common for employers to monitor employee usage of these devices and systems” - loses its salience in light of the particular circumstances in this case. (Defs’ Mot. Summ. J. at 36). Appeals to broad societal norms quickly give way once an employer, like the defendants in this case, promulgates and announces a policy to its employees detailing how much privacy to expect in using such equipment. At that point such social norms are trumped by the particular norm that was implemented in the work place in question. It is that specific policy norm that clothes the level of privacy associated with the use of the pagers (and any expectation of privacy in the use of the same) in this case. It is unreasonable to conceive that an employee would assume that some other unstated norm should inform their opinion on how much privacy to expect in using an employer’s equipment, once that employer informs his or her employees his policy regarding the use of that equipment. Defendants’ argument therefore rises and falls on how they enforced that particular policy norm. Here, Lieutenant Duke’s actions significantly eroded any attempt on defendants part to lessen the expectation of privacy its employees had in the use of the pagers issued to them. Significantly, defendants nowhere seek to uphold their seizure of Quon’s text messages as being “reasonable under the circumstances,” Schowengerdt, 823 F,2d at 1335, nor have defendants sought protection from suit on this particular issue through appeal to the qualified immunity doctrine.[5] *14 This then leaves only the question of whether seizure of Klein and Florio’s cell phones and pagers violated the Fourth Amendment. In this regard, defendants apparently concede that Klein and Florio had a reasonable expectation of privacy in their personal cell phones and pagers, see Schowengerdt, 823 F.2d at 1335 (noting that employees have a reasonable expectation of privacy over items “given over to [their] exclusive use”), and instead shift to arguing whether the seizure of cell phones and pagers during the interview by internal affairs personnel was reasonable under the circumstances. “[u]nder Ortega a warrantless search ... nevertheless could be legal if the search was both work-related - that is, carried out to retrieve the employer’s property or to investigate work-related misconduct - and ’reasonable’ under the circumstances.” Schowengerdt, 823 F.2d at 1335. Evaluation of the reasonableness of such an intrusion is gauged by looking to “the inception and the scope of the intrusion.” O’Connor v. Ortega, 480 U.S. 709, 726 (1987). “A search of an employee’s office by a supervisor will be justified at its inception when there are reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-related misconduct, or that the search is necessary for a noninvestigatory work-related purpose such as to retrieve a needed file.” Id. A search is considered reasonable in its 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. Defendants assert that the seizure of the cell phones and pagers was reasonable as it was necessary to prevent Klein and Florio from obstructing the investigation by using these devices to communicate to one another during the interview to coordinate and harmonize their testimony. Plaintiffs challenge the reasonableness of the seizure’s scope, noting that even if this was the purpose behind the seizure other measures short of taking their cell phones and pagers could, and were, in fact, employed by defendants to curb such compromise of the investigative process. It is noted that the defendants kept the two women separated from one another during the interview and that each was kept under watch by internal affairs personnel through a window. Certainly, “if less intrusive methods were feasible,” that would play into the reasonableness of the seizures scope. Schowengerdt, 823 F.2d at 1336. The alternatives suggested by plaintiffs, however, do no adequately address the concerns prompting the seizure - thwarting the plaintiffs ability to manufacture their testimony by communicating with one another during the interrogation process. True, separating the two from one another would keep them from being able to directly communicate with one another to manufacture their testimony, but such physical segregation does nothing to impede the plaintiffs ability to communicate with one another using their pagers and cell phones. Similarly, having the plaintiffs under surveillance by internal affairs personnel via the one-way mirror in an interrogation observation room may assist in detecting such surreptitious electronic communication as it happens it would do nothing to actually stop the communication before it occurs. The Court therefore finds that the seizure of Klein and Florio’s pager and cell phone during their interrogation by internal affairs personnel was reasonable under the circumstances. Accordingly, the Court GRANTS defendants summary judgment insofar as plaintiffs Florio and Klein’s Fourth Amendment claim for the seizure of their cell phones and pagers, but DENIES defendants summary judgment as to the plaintiffs’ state invasion of privacy claim and their related Fourth Amendment claim concerning the seizure of the contents of the text messages sent and received on Jeff Quon’s city-owned pager. C. DEFAMATION *15 The defamation claim may be easily dispatched. Jerilyn Quon asserts that the reason why she did not receive the job with the Upland police department is because Chief Scharf contacted the Upland police chief and disparaged her by commenting that she had sued him for divulging the contents of her then ex-husband’s pager. For a defamation claim to be made there must be “the intentional publication of a statement of fact that is false, unprivileged, and has a natural tendency to injure or which causes special damages.” Smith v. Maldonado, 72 Cal.App.4th 637, 645 (1999). None of the elements for such a claim exist in this case. Jerilyn Quon to this day, despite having gone through an extended discovery period, has been unable to describe except in the most general of terms the nature of this defamatory comment. Even then all she can proffer is conjecture that a statement must have been made and that this surmised statement must have something to do with her suing Chief Scharf. See Melaleuca, Inc. v. Clark, 66 Cal.App.4th 1344, 1350 (1999)(“the law of defamation and the law of injurious falsehood require that a plaintiff prove far more than the publication of a false statement”); Seelig v. Infinity Broadcasting Corp., 97 Cal.App.4th 798, 809 (2002) (“plaintiff must present evidence of a statement of fact that is provably false”). The most glaring problem with this “evidence” (leaving aside whether such a statement is even untrue) is that the present lawsuit was not even filed until February 25, 2003, more than two weeks after the alleged statement was made. Chief Scharf’s statement that Jerilyn Quon was suing him simply could not have taken place as he had not even been sued at the time the statement was allegedly made. Even more problematic for Jerilyn Quon is that she has no proof that Chief Scharf said anything to Chief Thouvenall. Both have submitted affidavits indicating that they did not speak to each other about Jerilyn Quon in general or about her application in particular. (Aff. Lloyd Scharf ¶ 2; Aff. Martin Thouvenell ¶ 2). Her attempts to paper over these glaring omissions in her proof by resort to evidentiary “inferences” in retaliation claims only further demonstrates the paucity of her proof on this claim. To begin with the obvious what may be sufficient to make out a retaliation claim says very little for an entirely separate cause of action, such as defamation, with its own separate and divergent elements of proof. A retaliation claim does not require that a plaintiff prove what was said or that the defendant said it, but allows proof through inferences to abound as a proper methods of marshaling one’s evidence. The same cannot be said about a defamation cause of action. Proof that the defendant actually made a statement to someone is critical for liability to attach. See Scott v. McDonnell Douglas Corp., 37 Cal.App.3d 277, 291 (1974) (“as to these latter utterances the complaint fails to allege that these statements were ever published or made known to any third person. Thus an action in defamation would not lie, there being no publication”). That Jerilyn Quon may surmise that a statement must have been made because otherwise she would have gotten the job is not proof that it was so, much less that Chief Scharf was the one who made this hypothesized statement. Res ipsa loquitor has no place in defamation claims. Without such direct proof about what the defamatory comment actually was and that the defendant actually made that comment to someone else, summary adjudication in favor of the defendants is required. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)(holding that summary judgment is in order when “the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof”). Accordingly, with respect to the defamation claim, the governmental defendants are GRANTED summary judgment. D. CALIFORNIA PENAL CODE SECTION 629.86 Plaintiffs have not filed an opposition to the government defendants’ argument that their state law claim under California Penal Code § 629.86, which prohibits the interception of wire and electronic communications, is barred as the text messages in question were in electronic stored files. This Court has previously ruled in this case that such a claim is barred as the statute “is modeled on the federal Wiretap Act and covers interception of wire and electronic communications, not the acquisition of electronically stored communications and the disclosure of such communications as Plaintiffs have alleged.” Quon v. Arch Wireless Operating Co., Inc., 309 F.Supp.2d 1204, 1210 (C.D. Cal. 2004). This being the law of the case, the governmental defendants are GRANTED summary judgment on the section 629.86 claim brought against them by plaintiffs. *16 Accordingly, for the reasons stated above defendants’ motion for summary judgment is GRANTED IN PART and DENIED IN PART, and plaintiff’s motion for partial summary judgment is DENIED. [1] Plaintiffs’ motion for summary judgment is brought only with respect to their federal Stored Communications Act and state law invasion of privacy claims against defendant Arch Wireless Operating Company, Inc. [2] To the extent the governmental defendants would qualify, one of the exceptions to the statute’s prohibition - as the Court discusses below viz via Arch Wireless - would apply, thus further absolving them of liability. [3] Nowhere in their complaint have plaintiffs alleged, nor in their pleadings have they argued, that the governmental defendants should be held liable under section 2707 for aiding and abetting a violation of the statute. See In re American Airlines, Inc. Privacy Litigation, 370 F.Supp.2d 552, 556 n.10 (N.D. Tex. 2005)(assuming arguendo that such aiding and abetting liability is possible under the statute). Liability is premised solely on the governmental defendants being a principal in the violation of the statute, hence the plaintiffs citation to section 2703’s prohibition against acts directly committed by law enforcement in seeking the contents of stored electronic files. [4] Given that the arguments lodged against plaintiffs’ invasion of privacy claim and state constitutional claim are the same as those pressed against their Fourth Amendment claim, see Defs’ Mot. Summ. J. at 33-38, the Court will confine its discussion to the Fourth Amendment. Defendants’ argument that the audit was not a serious invasion of plaintiffs’ privacy is nothing more than a repackaging of their argument that plaintiffs could have no reasonable expectation of privacy in such communications. Defs’ Mot. Summ. J. at 39 (claiming no serious invasion of privacy as “equipment owned by employer,” such monitoring is “very typical in today’s workplace” and “it was authorized by the City policies” to which plaintiffs “were aware and had consented to”). As such it too would fail if the Court would hold, as it does, that plaintiffs did have a reasonable expectation of privacy in those communications. [5] The governmental defendants have only sought qualified immunity with respect to plaintiffs’ SCA claim and the Fourth Amendment claim concerning the seizure of Klein and Florio’s cell phones and pagers. (Defs. Mot. Summ. J. at 44-48). Similarly, the Court DENIES plaintiffs’ partial motion for summary judgment on their invasion of privacy claim against Arch Wireless as material issues remain in dispute.