Privacy vs. Safety:
School Searches of Electronic Devices
/
Rubén A. Villalobos
Partner, Villalobos2 Legal Group
Trustee, Modesto City Schools
ruben.villalobos@gmail.com
1
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
Syllabus
I.
II.
III.
IV.
Introduction to Legal Theory
The Question Before Us
Brainstorm Issues Raised by Phones in Schools
Search and Seizure
a. Generally
b. In Schools
c. Implications to electronic data.
V.
Special Issues
VI. Questions?
3
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
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
Balancing Test
• Weighing one interest against another.
– Individual v. individual
– Individual v. Society
6
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
“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
“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
(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
“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
“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
Purpose of Search
• To enforce rules.
• To ensure school safety.
• To protect an orderly,
academic environment.
13
Brainstorm Issues Raised by Cell
Phones in schools.
14
Then there are the other uses.
15
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
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, 185-186 (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
What about texts, tweets, pics, etc?
• Intangible communications can be “seized when
intercepted. Berger v. New York, 388 US 41, 59-60 (1967).
• But, in 1967, could the Supreme Court have fathomed texts
or tweets? (Alito, 4th Amendment as a “blunt instrument.”)
18
The Government Always
Has an Alternative:
19
Except, for the Exceptions
You! Warrants are “not practical in the school setting.”
20
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.4th 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
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
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
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
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
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.4th 801 (2004).
26
27
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
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
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
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
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 emails.
• 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. www.isafe.org
32
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
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. www.thenationalcampaign.org.
34
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
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
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
Any Questions?
38