Richard Raysman and Peter Brown (ljh)
For better or worse, the proliferation of technology accessible to minors has fundamentally altered the way they communicate and interact with the world around them. Since the schools they attend maintain an interest in their well-being, it’s easy to imagine how this change has complicated the relationship between the two. Whether through proprietary software specifically designed to monitor the social media communiqués of students, or through a casual Facebook search, administrators now have a trove of information at their fingertips. Courts are only now beginning to confront the myriad privacy questions that arise as a result of the increasing interconnectedness between students and school districts.
This article will discuss several prominent cases that confront the issues intrinsic to this relationship, including: whether unauthorized access to the computers or social media accounts of students can violate statutory and constitutional laws governing searches and seizures; at what juncture does a student surrender a right to privacy in the student’s online communications; and the circumstances in which a school can discipline a student for online speech without violating the First Amendment.
The ‘Robbins’ Case
Robbins v. Lower Merion School District, 2010 WL 3421026 (E.D. Pa. Aug. 30, 2010), was a class action suit filed in 2010 on behalf of students who had been spied on at home via a camera installed in laptops provided by the presiding school district. Dubbed “WebcamGate,” the lawsuit made considerable waves in the popular press and precipitated multiple criminal investigations, likely as a result of the salacious allegations levied against the school district. For example, a widely circulated photo taken by the webcam and stored on the school district’s computers depicted the named plaintiff in his bed.
The plaintiffs alleged that the Lower Merion School District (LMSD) had surreptitiously and “indiscriminately” photographed students without permission of the students or parents via a webcam installed in a personal laptop computer the school district had provided. The webcam was disabled for all other uses, including video chat, so most students believed the webcams did not work at all. In reality, officials at LMSD installed a program on the laptops called “TheftTrack,” that permitted district employees to remotely activate the webcam and use it to take clandestine photos that would be subsequently transmitted to the school servers. TheftTrack also allowed school officials the ability to take screenshots and record the IP address of the laptops. The laptops were programmed to erase whatever files were sent from the laptops to the school servers. As LMSD Network Technician Mike Perbix matter-of-factly noted: “[W]hen you’re controlling someone’s machine, you don’t want them to know what you’re doing.”
The plaintiffs discovered the monitoring after a screenshot taken by TheftTrack of the plaintiff in his bedroom was used by his school to mete out discipline. As a result of this “spying,” plaintiffs filed suit alleging violations of the Electronic Communications Privacy Act (ECPA), the Computer Fraud and Abuse Act (CFAA), the Stored Communications Act (SCA) and the Fourth Amendment, among other laws, based on LMSD’s “indiscriminate use of an ability to remotely activate the webcams incorporated into each laptop.” The suit followed an emergency motion from the same plaintiffs seeking an injunction to prevent LMSD from activating the webcam remotely and taking screenshots. The motion was granted.
Interestingly, as a result of information gleaned from a discovery order from the presiding judge in Robbins, another student commenced a lawsuit against LMSD as a result of pictures it had taken and stored of him. See Complaint at 8-12, Hasan v. Lower Merion School District, No. 2:10-cv-03663-JD (E.D. Pa. July 27, 2010) (alleging violations of the SCA, ECPA and CFAA based on webcam spying).
Both cases settled. LMSD (via its insurer) paid more than $600,000 to the named plaintiffs to settle the various charges against it. Nonetheless, the cases highlighted the increasing clash between privacy interests of students and the interests in maintaining order and discipline of school districts.
Post ‘Robbins’ Developments
Since Robbins, a number of cases that involve analysis of the legality of student monitoring have been actually litigated. In R.S. ex rel. S.S. v. Minnewaska Area School Dist. No. 2149, 894 F. Supp. 2d 1128 (D. Minn. 2012), a middle school student sued the school district alleging, inter alia, a violation of her Fourth Amendment right to be free from unreasonable search and seizure.
In that case, the school received a message from the parent of another student alleging that the plaintiff was engaged in a “naughty” online conversation about “sexual topics” with the student off school premises. As a result of these allegations, the plaintiff was called out of class on two separate occasions. During the second instance, in which the plaintiff was alone in a room with a uniformed police officer, school officials demanded she provide them with her email and Facebook usernames and passwords. The plaintiff initially refused, only to then be called a “liar” and threatened with detention for a refusal to comply. After acquiring the passwords, the officials logged into plaintiff’s Facebook account and spent 15 minutes viewing her public postings along with her private messages. Though no subsequent formal discipline occurred, the plaintiff subsequently missed days of school and alleged that she fell behind in her school work and felt “depressed, angry, scared and embarrassed.”
In evaluating the Fourth Amendment claim, the court noted that as a threshold matter, whether the plaintiff possessed a sufficiently “reasonable expectation of privacy” required to sustain a claim depended in large part on “their ability to exclude others from the place searched.” See Minnesota v. Carter, 525 U.S. 83 (1998) (Ginsburg, J., dissenting). As such, since the plaintiff’s private messages were in her exclusive possession due to being password protected, she had a reasonable expectation of privacy in said messages, “as with a private letter.” The court then turned to whether the school interest in preventing a violation of school rules outweighed the plaintiff’s reasonable expectation of privacy. It concluded the school’s interest did not, largely on the grounds that its purview is the school grounds, and as a result, it had no reason to believe that a conversation occurring entirely outside the school, however “naughty,” posed any sort of threat to discipline or order within the classroom. Accordingly, the plaintiff’s allegations of a violation of the Fourth Amendment could survive a motion to dismiss.
Another case involving a school monitoring its students online communication illustrates that whether the student possesses a “reasonable expectation of privacy” can be dispositive in adjudicating the merits of a Fourth Amendment claim. In Chaney v. Fayette County Public School Dist., —F. Supp. 2d—, 2013 WL 5486829 (N.D. Ga. 2013), a high school student brought an invasion of privacy claim against the school district after one of its employees used a Facebook photo of her in a bikini in a presentation at a “Community Awareness Seminar.” Specifically, the employee used the photo in his presentation as an example of the permanent and potentially embarrassing nature of postings on social media. The employee had found the photo because the plaintiff’s profile was customized with the most inclusive privacy setting available to minors on Facebook. This decision by the plaintiff to permit the widest dissemination of her information proved to be dispositive in rejecting her claim. In noting that a person “has no legitimate expectation of privacy in information he voluntarily turns over to third parties,” the court held that the plaintiff could not sustain a Fourth Amendment claim since she had voluntarily shared the picture with an audience of potentially hundreds, or even thousands, of people she did not know. Unlike the purportedly salacious messages accessed in Minnewaska, the plaintiff’s photo had hardly been excluded from viewing by unauthorized individuals, and therefore did not fall under the penumbra of the Fourth Amendment protections. See also United States v. Meregildo, 883 F. Supp. 2d 523 (S.D.N.Y. 2012) (utilizing one of defendant’s Facebook friends to access defendant’s Facebook profile to obtain a search warrant did not violate the Fourth Amendment since the postings shared with a friend constituted a surrender of an expectation of privacy).
As detailed below, constitutional protections have been invoked in a separate context by students wishing to avoid monitoring and sanctioning from the schools they attend.
First Amendment Violations?
Ever since the U.S. Supreme Court held that students do not discard their First Amendment rights upon entering school, repeated clashes between the respective interests of a student and the school administration have occurred. See Tinker v. Des Moines Indep. Cnty. Sch. Dist., 393 U.S. 503 (1969) (wearing black armbands to protest the Vietnam War did not warrant a suspension since this protest did not “materially and substantially disrupt the work and discipline of the school”). More recently, these contretemps have centered frequently on student speech in online forums.
Courts have differed in what type of online speech, conduct, or both can create “substantial disruption…to the school” sufficient to exclude it from the protections of the First Amendment and thereby permit the school to mete out discipline. This is to be expected, as the Ninth Circuit recently noted that “[o]ne of the difficulties with the student speech cases is an effort to divine a global standard for a myriad of circumstances involving off-campus speech.” See Wynar v. Douglas Cnty. Sch. Dist., 728 F.3d 1062 (9th Cir. 2013).
In one case, a group of students were suspended after posting a video to YouTube in which they engaged in disparaging remarks about another student. In holding at the summary judgment stage that the suspension violated the First Amendment, the court held that getting a phone call from a disgruntled parent, and evidence that a half-dozen students missed an undetermined portion of their classes, did not “rise to a level of a substantial disruption.” See J.C. ex rel. R.C. v. Beverly Hills Unified School Dist., 711 F. Supp. 2d 1094 (C.D. Cal. 2010); see also T.V. ex rel. B.V. v. Smith-Green Community School, 807 F. Supp. 2d 767 (N.D. Ind. 2011) (“scandalous” photos posted online by a group of teenagers that engendered two complaints from parents and “petty sniping” amongst other students did not rise to the level of a substantial disruption). In contrast, when an off-campus blog post by a disgruntled would-be candidate for student government precipitated a “deluge” of phone calls and emails, a group of students protesting outside the office of the principal and “many” upset students, the presiding court, when facing a request for a preliminary injunction to prevent the school from sanctioning the student, concluded that a substantial disruption could have occurred. See Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008).
There is one area where schools are afforded significantly more latitude in regulating the online speech of its students. When the content of the online speech emanating from a student can be reasonably construed as threatening or advocating violence to the school or other students, administrators are permitted, even compelled, to take disciplinary action against the offending student. For example, a recent case involved a student with confirmed access to weapons who had posted a spate of messages on his MySpace account evincing a plan to commit a school shooting on the same day of the Columbine massacre. See Wynar v. Douglas Cnty. Sch. Dist., 728 F.3d 1062 (9th Cir. 2013). After learning of the messages, other students brought them to school administrators who then suspended the author for 90 days. The author brought a First Amendment claim on the grounds that this punishment violated his rights to free speech. The Ninth Circuit rejected this claim and upheld the suspension. First, it noted that it was reasonable for the school to take his threats seriously, since his MySpace messages confirmed he had access to the necessary weapons and also enumerated the specific date and victims of the forthcoming attack. Second, the court held that since the messages advocated a threat to the student body as a whole, the school was right in acting to prevent what constitutes the “quintessential harm” to the rights of the other students to be secure.
Though schools have since time immemorial monitored the communications of its students, the proliferation of technology has undoubtedly complicated the situation for administrators. As one court recently noted: “[T]he challenge for administrators is made all the more difficult because…students are instant messaging, texting, emailing, Twittering, Tumblring, and otherwise communicating electronically, sometimes about the subjects that threaten the safety of the school.” In response, administrators are adopting new approaches to monitoring, including even the utilization of proprietary technology to comb through the social network posts of students in its district. The results thus far have been mixed. While threats made via an online communication can be realized and quelled, the overreach in the Robbins case exemplifies how manipulation of technology can allow for a breach of fundamental rights to privacy. At present, the only certainty is that the conflict between these competing interests is unlikely to abate in the near future.