Privacy vs. Safety: School Searches of Electronic Devices

Transcription

1 Privacy vs. Safety: School Searches of Electronic Devices / Rubén A. Villalobos Partner, Villalobos 2 Legal Group Trustee, Modesto City Schools ruben.villalobos@gmail.com 1

2 Introduction WELCOME Ask Questions! Interrupt me. Participate. Raise Hands. While this will be fun, we will be discussing serious topics. Individual rights, evolving technology, safety, bullying, sexting, academic dishonesty. 2

3 Syllabus I. Introduction to Legal Theory II. The Question Before Us III. Brainstorm Issues Raised by Phones in Schools IV. Search and Seizure a. Generally b. In Schools c. Implications to electronic data. V. Special Issues VI. Questions? 3

4 Theories Of Law Authoritarianism Absolute obedience to authority, as against individual freedom. Natural Law Through reason, we can analyze human nature and deduce binding rules of moral behavior. Social Contract Theory 1) The people agree, either explicitly or tacitly, 2) to surrender some of their freedoms and submit to authority or to majority rule, 3) in exchange for protection of their remaining rights. 4

5 Always Check Your Sources!!! The safety of the people shall be the highest law. Cicero (106 BC - 43 BC), De Legibus The good of the people shall be the highest law. Cicero (106 BC - 43 BC), De Legibus 5

6 Balancing Test Weighing one interest against another. Individual v. individual Individual v. Society 6

7 The Prompt, Deconstructed: Should public schools have the right to seize and search an individual student s electronic devices when there is cause or when there has been a violation to 1) enforce rules, 2) ensure school safety and security, and 3) protect an orderly, academic environment. 7

8 Should This calls for a position! No right or wrong answer, as long as you take a position, and Support that position with facts and law. Be a Judge. A judge is a law student who marks his own examination papers. - H. L. Mencken 8

9 Public Schools Mall Cop Police Officer = State Actor Rule: Search or seizure by a private individual, even if it is unreasonable, does not implicate the Fourth Amendment. - United States v. Jacobsen, 466 U.S. 109, 113 (1984). Vote: Are Campus Supervisors like Mall Cops or State Actors? 9

10 (Should public schools) Have the Right Provides an option, not a mandate. How does that right get exercised? Criteria: Fairness Uniformity (School/District/State/Country) Limited discretion 10

11 To Seize and Search Seize Who can take a student s phone? Teacher? Principal? Staff member? Search When can a phone be searched? Physical Searches? Electronic Searches? 11

12 When there is Cause to Search Hunch? Tip? Rumor? Social Media post? Reasonable Suspicion? Probable Cause? When there has been a violation? Vote: What is the standard for a school search? 12

13 Purpose of Search To enforce rules. To ensure school safety. To protect an orderly, academic environment. 13

14 Brainstorm Issues Raised by Cell Phones in schools. 14

15 Then there are the other uses. 15

16 Search and Seizure in General Fourth Amendment The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 16

17 Search and Seizure in General Seizure: Some meaningful interference with an individual s possessory interest in property US v. Jacobsen, 466 U.S. 109,113 (1984). Search: Occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. US v. Jacobsen, 466 U.S. 109,113 (1984). Exception: A warrantless search that violates a reasonable expectation of privacy can be constitutional if it falls into an exception to the warrant requirement. Illinois v. Rodriguez, 497 US 177, (1990). The Rule: 1) Does the search violate a reasonable expectation of privacy? 2) If so, are there any exceptions to the warrant requirement? 17

18 What about texts, tweets, pics, etc? Intangible communications can be seized when intercepted. Berger v. New York, 388 US 41, (1967). But, in 1967, could the Supreme Court have fathomed texts or tweets? (Alito, 4 th Amendment as a blunt instrument. ) 18

19 The Government Always Has an Alternative: 19

20 Except, for the Exceptions You! Warrants are not practical in the school setting. 20

21 Search and Seizure in Schools School administrators may search students if they have a reasonable suspicion that a student has violated or is violating either the law or the rules of the school. New Jersey v. T.L.O, 105 S.Ct. 733 (1985). Reasonable Suspicion requirement attaches to the school setting, not the government actor. In Re. William V. 111 Cal.App.4 th 1464 (2003). Reasonable suspicion = A standard of proof less than probable cause but greater than a hunch, that must be based on specific and articulable facts. 21

22 New Jersey v. T.L.O., (Part 1) Facts: Teacher caught T.L.O and a friend smoking in the girl s bathroom. Friend fessed up, T.L.O denied it. Principal (a male) had T.L.O. come to his private office, and searched her purse. Guess what he found in the purse? 22

23 New Jersey v. T.L.O., (Part 2) Pack of cigarettes Rolling Papers Weed and pipe multiple empty baggies, lots of $ in Ones, pay/owe sheets, and two letters implicating T.L.O in weed sales. 23

24 New Jersey v. T.L.O., (The Ruling) Fourth Amendment prohibition on unreasonable searches and seizures applies to school officials; In carrying out policies to promote education, Schools act as state actors, and are not acting in loco parentis; Balancing test: The student s legitimate expectation of privacy -v- the school s legitimate interest in maintaining a safe learning environment. 24

25 New Jersey v. T.L.O., (The Ruling) The warrant requirement is unsuited to the school context, in that it would unduly interfere with swift and informal discipline in schools. A search by a school official is reasonable under the Fourth Amendment if it is 1) Justified at its inception; and 2) Reasonably related in scope to the circumstances which originally justified the search. 3) not excessively intrusive, in light of the age and sex of the student and nature of the infraction. 25

26 Other Cases Being suspected of being late for class, hiding a glass case, and invoking a legal right does not give reasonable suspicion to search. In Re William G., 40 Cal 3d. 550 (1985). Disruptive behavior (leaving class without permission) does not give cause to search. In Re Lisa G., 125 Cal.App.4 th 801 (2004). 26

27 27

28 Cell Phone Searches generally: Riley v. California: Get a warrant!* 9-0 decision: Police may not search cell phones of criminal suspects upon arrest without a warrant -- a sweeping endorsement for privacy rights. Smartphones wallets, briefcases, and vehicles. Once an officer has secured a phone and eliminated any potential physical threats, however, data on the phone can endanger no one. *Riley v. California, 573 U.S. (2014). 28

29 Riley, (Part 2) Privacy comes at a cost. Our holding, of course, is not that the information on a cell phone is immune from search; it is instead that a warrant is generally required before such a search. 29

30 Cell Phone searches in Schools: Klump v. Nazareth Area School District, 425 F. Supp.2d 622 (E.D. PA 2006) Facts: Plaintiff (π) seen using phone in school. Administrator (Α) seized phone due to (π s) using it during school. (Α) called nine other students in (π s) phonebook, to see if they were violating rule too. (Α) impersonated (π) in text message (Α) intercepted text from (π s) girlfriend, that may have involved drugs. 30

31 Klump, Part 2- The Ruling A school can seize a phone when it has been displayed or used in violation of policy- but they cannot search it. A school can search a phone if they have a reasonable suspicion that it has been used for illegal purposes or to violate school rules. The Stupid test. 31

32 Special Issues: Cyber Bullying 42% of children have been bullied while online. 35% of children have been threatened while online. 21% have received mean or threatening s. 58% have had mean things said to them online. 53% have said mean things to another person online. 58% have not told their parents about something mean that happened to them while online. Source: isafe, Cyber Bullying: Statistics and Tips. 32

33 Special Issues: Cyber Bullying Assembly Bill (AB) 86 Amended the Education Code to define bullying as including bullying committed personally or by means of an electronic act. Most schools have incorporated this into their student conduct codes. 33

34 Special Issues: Sexting 20% of teens have electronically sent or posted online nude or semi-nude pictures or videos of themselves. 39% of teens have sent or posted sexually suggestive messages; 48% have received them. 25% of teen girls and 33% of teen boys have had nude or semi-nude images, originally intended for someone else, shared with them. Source: National Campaign to Prevent Teen and Unplanned Pregnancy, Sex and Tech: Results from a Survey of Teens and Young Adults. 34

35 Special Issues: Sexting Sexting images of underage students is illegal child pornigraphy. Child pornography is not protected by the First Amendment. The US Supreme Court held that child pornography, even if not obscene, is not protected because the government has a compelling interest in safeguarding the physical and psychological well-being of minors. New York v. Ferber, 458 U.S. 747 (1982). 35

36 Special Issues: Academic Integrity Cell Phones in Class Pro Multi-media Academic networking A tool more powerful than what the United States had when we put a man on the moon, n the hands of a student. What else? Con Cheating Staying on-task What else? 36

37 Example: Modesto City Schools Phone Policy BP 5138: MCS Allows electronic signaling devices to be used in school. They must be put away in class, unless the teacher has authorized their use. Adopted 4/23/03, Revised 4/11/11 and 6/16/14 Oakdale: Same, but phones must be put away in class. 37

38 Any Questions? 38