Partial Settlement Reached in Pa. 'Sexting' Case

Shannon P. Duffy

The Legal Intelligencer

One of the high school students at the center of the "sexting" controversy in Wyoming County has agreed to a partial settlement of a civil rights suit that said her constitutional rights were violated when a principal confiscated her cell phone, found nude images she had taken of herself and turned it over to prosecutors.

Under the terms of the settlement, the Tunkhannock Area School District in Northeastern Pennsylvania agreed to pay $33,000, but admitted to no wrongdoing. However, the plaintiff, who is identified in court papers only as N.N., has not settled her claims against the Wyoming County District Attorney's Office.

As a result, the case will continue and still has the potential to break new legal ground, possibly setting a precedent on the issue of whether students have a right of privacy that extends to the contents of their cell phones.

"We're pleased that the school district resolved the dispute quickly and amicably, but much work remains to educate school officials across the country about the importance of respecting students' significant privacy interests in the contents of their cell phones," said attorney Witold Walczak, the ACLU of Pennsylvania's legal director.

Walczak said that $10,000 of the settlement will go to the ACLU for attorney fees, and the remainder will go to the plaintiff for her damages.

Walczak was joined as counsel in the suit by Valerie Burch of the ACLU's Harrisburg office.

The case began in January 2009 when a teacher confiscated the cell phone of N.N., a 17-year-old senior, for using the phone after homeroom began, a violation of school policy. Later that morning, according to the suit, the principal informed N.N. that he had found "explicit" photos stored on her cell phone, which he turned over to law enforcement. He then gave her a three day out-of-school suspension, which she served.

The suit alleged that the photographs -- which were not visible on the screen and required multiple steps to locate -- were taken on the device's built-in camera and were never circulated to other students in the school.

The suit said N.N. appeared fully covered in most of the photographs, although several showed her naked breasts and one indistinct image showed her standing upright while fully naked. It also said the photographs were intended to be seen only by N.N.'s longtime boyfriend and herself.

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. U.S. District Judge James Munley issued an injunction barring any prosecution of the plaintiffs and the 3rd U.S. Circuit Court of Appeals later upheld the injunction.

In the second suit, N.N. sought money damages on the grounds that her privacy was violated when 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 her boyfriend.

In addition to the Tunkhannock Area School District, the suit also named as defendants principal Gregory Ellsworth, as well as Skumanick and Wyoming County's current district attorney, Jeff Mitchell.