The hot-button issue of "sexting" is coming back to court and this time the ACLU is setting out to establish that high school students have a right to privacy that includes the contents of their cell phones.
A team of lawyers from Cozen O'Connor has partnered with the ACLU of Pennsylvania to sue on behalf of a student who claims her constitutional rights were violated when the principal confiscated her cell phone, found nude images she had taken of herself and turned it over to prosecutors.
ACLU legal director Witold Walczak said the issue is an important one because many school officials incorrectly believe they have the right to search through cell phones whenever a student is misusing one.
"We try to explain to them that they have the right to confiscate it, but they don't have the right to look through it," Walczak said in an interview.
Once again, the case stems from the wave of sexting discovered among students at Tunkhannock junior and senior high schools in Wyoming County, Pa., and the reactions it sparked in school officials and prosecutors.
In a previous lawsuit that was aimed only at the Wyoming County prosecutors, three students won an injunction that barred any prosecutions of students on child pornography charges for the nude and semi-nude images found on their phones.
According to that suit, school officials turned over the students' phones to former Wyoming County District Attorney George Skumanick Jr., who responded by targeting 13 girls and three boys with threats of criminal charges if they did not agree to take a class he had designed on the dangers of sexting.
Most agreed to take the class to avoid prosecution, but three of the girls and their parents instead enlisted the help of the ACLU to challenge the threatened prosecutions. Lawyers from the American Civil Liberties Union of Pennsylvania won an injunction from U.S. District Judge James Munley that was later upheld by the 3rd U.S. Circuit Court of Appeals.
Now, in a second suit, a student identified only as "N.N." claims the school officials and prosecutors illegally searched the contents of her phone even though she intended the racy photos to be "seen only by herself and, perhaps, her long-time boyfriend."
Named as defendants in the suit are Tunkhannock Area High School District and principal Gregory Ellsworth, as well as Skumanick and Wyoming County's current district attorney, Jeff Mitchell.
The plaintiff is one of the girls who took Skumanick's class to avoid prosecution, but now claims that the initial search was illegal.
"I was absolutely horrified and humiliated to learn that school officials, men in (the) DA's office, and police had seen naked pictures of me," the plaintiff, now 19, said in a statement released by the ACLU.
"Those pictures were extremely private and not meant for anyone else's eyes. What they did is the equivalent of spying on me through my bedroom window," the plaintiff said.
Mitchell and Superintendent Michael J. Healey declined to comment Thursday, saying they had not seen the suit. Ellsworth and Skumanick did not immediately return phone messages.
The suit was filed by attorneys Jacob C. Cohn, Ilan Rosenberg, Micah J. M. Knapp, David M. Albert, Kathryn M. Rutigliano and Andrea Cortland of Cozen O'Connor, along with ACLU attorneys Walczak and Valerie Burch.
In the opening paragraphs of the suit, the plaintiffs team set out to frame the constitutional issue, contending that cell phones have become one of the most important storage devices for private material.
"In today's age," the suit says, "cellular telephones store large amounts of personal and often very private data, including lists of contacts, text messages, photographs and videos. A search of the device is akin to browsing through someone's address and appointment book, opening and reading letters sent by U.S. mail, and rummaging through a family photo album or viewing home videos."
Cell phones belonging to high school students, the suit says, cannot be searched without "reasonable suspicion."
Plaintiff N.N. also claims that her First Amendment rights were violated when she was punished for storing nude and seminude photographs of herself on the cell phone.
The suit alleges that after N.N.'s phone was confiscated, she and her mother met with David Ide, the chief detective for the Wyoming County District Attorney's Office, who told them he had seen the photos and that the phone had been sent to a crime lab in Delaware.
When N.N.'s mother stepped away, the suit says, Ide told N.N. that "it was a shame she had not waited until after her eighteenth birthday in April 2009, because, instead of getting into trouble, she could have submitted the photographs directly to Playboy magazine."
Soon thereafter, the suit says, N.N. received a letter from Skumanick threatening felony child pornography charges if she did not complete a five-week re-education course on violence and victimization offered by the District Attorney's Office and the Victims Resource Center. According to the suit, N.N. reluctantly agreed to take the course rather than face prosecution.
"Ironically N.N. was forced to take a class about victimization by the very people who were victimizing her," said Cohn.
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