Fall 2017
INFORMATION PRIVACY LAW
1. PRIVATE CAUSES OF ACTION AND ANONYMOUS SOURCES
A. Invasion of Privacy
i.
Intrusion Upon Seclusion
1. Defendant intentionally invaded the private affairs of the plaintiff
2. That the invasion would be offensive to a reasonable person
a. Depends on how the information is collected
b. Defendant’s conduct was unreasonably intrusive
c. Trespasses into places where people have reasonable expectations
of privacy are actionable
d. The tort of trespass is highly offensive
i.
Looks at specific interest that the tort of trespass seeks to
protect
3. That the matter involved is private
a. Only if the information sought is of a confidential nature
b. Mere information gathering is not actionable under the intrusion
tort
c. But, extensive and exhaustive monitoring and cataloguing of acts
normally disconnected and anonymous  look at culmination of
events
4. And that the intrusion caused mental anguish or suffering
a. No publicity required
b. Where such surveillance aims to frighten or torment a person
c. Surreptitious electronic recording of a plaintiff’s conversation
causing emotional distress ins actionable
ii.
Appropriation of Name and Likeness
1. Appropriation means using someone else’s name or likeness without
permission for an exploitative purpose.
a. Some states have a separate claim for violation of a right of publicity
iii.
Public Disclosure of Private Facts
1. Public disclosure
2. Private fact
a. Matters cease to be “private” when occurring in public.
b. Ex. Pl. is gay. Pl. saves the president—article published talks about
him being a gay activist. He was active in the gay community so it
was already a public fact even if published outside his circle.
3. Offensive to a reasonable person
a. Shock the ordinary sense of decency
4. And the facts disclosed must not be newsworthy
a. Newsworthiness test: is this a matter of legitimate public concern?
i.
Three tests:
1. “leave it to the press” approach
a. argument against: they will say everything is newsworthy
2. “customs and conventions of the community”
a. draws the line between giving of information which the public
is entitled and morbid and sensational prying into private lines
for its own sake
3. Nexus test
a. Logical nexus between the complaining individual and the
matter of legitimate public interest
b. Interference allowed may be no greater than that necessary to
protect the overriding public interest
c. Crimes and torts committed in news gathering are not protected
iv.
False Light
1. One who gives publicity to a matter concerning another that places the
other before the public in a false light is subject to liability if
a. The false light would be highly offensive to a reasonable person, and
b. The person responsible for the publicity had knowledge of or acted
in reckless disregard as to the falsity of the publicized material and
the false light that would result
c. Actual malice standard
B. Defamation
i.
New York Times v. Sullivan
1. Actual malice standard for public officials, later extended to public
figures.
ii.
Elements:
1. A false and defamatory statement concerning another
2. An unprivileged publication to a third party
3. Fault amounting to at least negligence on the part of the publisher, and
4. The statement caused special harm or is actionable regardless of whether
it caused special harm
iii.
2
Slander v. Libel
1. Slander is spoken.
a. Slander per se consists of defamatory statements imputing to another
(1) a criminal offense; (2) a loathsome disease; (3) a matter
incompatible with one’s business, trade, profession, or office; or (4)
serious sexual misconduct
2. Libel is written
iv.
First amendment imitations
1. No protection if there is proof that the defendant published the report
with knowledge of its falsity or in reckless disregard of the truth
C. Intentional Infliction of Emotional Distress
i.
One who by extreme and outrageous conduct intentionally or recklessly causes
severe emotional distress to another is subject to liability for such emotional
distress, and if bodily harm to the other results from it, for such bodily harm.
1. Parodies of public figures from being civilly liable for IIED without
showing of actual malice. Merely outrageous is not enough.
ii.
Hustler Magazine v. Falwell
1. Establishes actual malice standard
D. Journalistic attempts to protect anonymous sources:
i.
No federal reporter shield
ii.
Some states do have reporter shields
2. SEARCH AND SEIZURE
A. Fourth Amendment
i.
First issue-is the fourth amendment applicable
1. 4A applies every time government officials (not just police) conduct a
“search” or the “seizure” of an object, document, or person
ii.
Second issue- whether the search or seizure is reasonable
1. Search warrants
a. Probable cause standard
i.
ii.
iii.
Requires that the government officials have “reasonably
trustworthy information” that is sufficient to “warrant a man
of reasonable caution in the belief that an offense has been
or is being committed”
More than a bare suspicion
A search is valid if the warrant is supported by probable
cause and the search is within the scope of the warrant
2. Reasonable expectation of privacy test (Katz)
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a. A person must exhibit an “actual (subjective) expectation of privacy,
and
i.
Smith v. Maryland (n. 15)- conditioned privacy expectations
by influences alien to well-recognized 4A freedoms, those
subjective expectations obviously could play no meaningful
role in ascertaining what the scope of 4A protections was. In
determining whether a “legitimate expectation of privacy”
existed in such cases, a normative inquiry would be proper.
Courts will protect people that don’t hold subjective
expectations of privacy that society would recognize as
reasonable.
b. The expectation [must] be one that society is prepared to recognize
as “reasonable.”
i.
ii.
“justifiable” “reasonable” or “legitimate” expectation of
privacy
more than a subjective expectation of not being discovered
iii.
does not protect expectations of privacy only a criminal
would have
iv.
property-based protection of privacy – typical interests
protected in property rights will be protected here as well.
v.
Third Party Doctrine-not a reasonable expectation if
information is given to a third party
vi.
To have a reasonable expectation of privacy under SCOTUS,
there must be some exclusion of others
vii.
What a person knowingly exposes to the public, even in his
home or office, is not subject to 4A protection
Trespass doctrine no longer controlling. But still influential.
Search without a warrant is per se unreasonable unless it is subject to a
few specifically established exception.
c. Rule from US v. White: The Fourth Amendment right against
unreasonable searches and seizures does not protect people from
their misplaced expectations of trust and therefore there is no
Fourth Amendment search and seizure when the person the
defendant is speaking with is secretly a government agent or an
informant wearing a wire and recording what is being said.
(Misplaced Trust Doctrine)
3. Search warrant not needed
a. Assumption of Risk Doctrine
i.
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Similar to third-party doctrine and misplaced trust doctrine.
You assume the risk of disclosure. It would be unreasonable
to expect that it remains private.
b. Third Party Doctrine
i.
ii.
iii.
No legitimate expectation of privacy in information he
voluntarily turns over to third parties
Formulated in the 70s when not much information was held
by third parties
Pen register
1. Also, numbers – not content
iii.
Third issue- how the fourth amendment is enforced
1. Exclusionary rule- evidence can be excluded from the trial
iv.
Emerging technology
1. Kyllo v. US – when the gov’t uses a device that is not in general public
use, to explore details of the home that would previously have been
unknowable without a physical intrusion, the surveillance is a “search”
and is presumptively unreasonable without a warrant.
2. Expectation of privacy changing with new technology but court
promises to protect us when it goes too far.
3. DIGITAL SEARCHES, EMERGING TECHNOLOGY AND BORDERS
A. Electronic Communications Privacy Act – three main parts
Separate from the 4A. Even if a search is reasonable under the 4A, electronic
surveillance law may bar the evidence.
i.
The Wiretap Act
1. Governs intentional interception of communications (wire, oral, or
electronic)
2. Any aggrieved person may move to suppress the contents of any
intercepted communication and any evidence derived from it.
3. Criminal penalties
4. Court order must be applied for. Standard: probable cause that an
individual has committed or is about to commit an enumerated offense
and that the particular communications concerning that offense will be
obtained through wiretapping. (“Super warrant”)
5. Only certain government officials can apply.
6. There are minimization techniques required.
7. Notice will be given to the surveilled party after denial of an order or
after the completion of an order.
8. Exceptions –
a. Does not apply if one of the parties to the communication
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b. A communications service provider is permitted to intercept and
disclose to authorities in the case of criminal activity
ii.
The Stored Communications Act
1. Communications in storage are protected.
2. Intentional access without authorization or exceeding authorization is
an offense under SCA.
3. Electronic storage – temporary, intermediate storage of wire or
electronic communication incidental to electronic transmission; any
storage of communication by an electronic communications service for
purposes of backup protection of communication
4. Does not apply to people or entities providing wire or electronic
communications service
5. But forbids disclosure of contents of stored communications but
communications service providers
a. Exceptions:
i.
ii.
Disclosures to the intended recipient
Disclosures with consent of creator or recipient
iii.
Disclosures that are “necessarily incident to the rendition of
the service or to the protection of rights or property of the
provider
iv.
Disclosures to a law enforcement agency under certain
circumstances
6. Criminal and civil penalties
7. Does not have an exclusionary rule
8. Less rigorous than the Wiretap Act
a. 180 days or less – need warrant with probable cause
b. more than 180 days – prior notice to subscriber and administrative
subpoena, grand jury subpoena, trial subpoena, or court order.
i.
ii.
Court order only needs “specific and articulable facts
showing that there are reasonable grounds.”
If they don’t want to give notice after 180 days then need
warrant
1. Then notice given after 90 days
iii.
The Pen Register Act
1. Governs pen registers and trap and trace devices (and their modern
partners
2. Requires court order
a. Government must certify the information likely to be obtained by
such installation and use is relevant to an ongoing investigation
b. No exclusionary rule. Criminal penalties
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B. US v. Andrus
i.
Voluntary consent to a police search, given by the individual under investigation
or by a third party with authority over the subject property is a well-established
exception to the warrant requirement.
ii.
Valid third-party consent
1. Actual authority
a. If that third party has either:
i.
ii.
Mutual use of the property by virtue of joint access, or
Control for most purposes
2. Apparent authority
a. When an officer reasonably, even if erroneously, believes the third
party possesses authority to consent
i.
Officers are not obligated to ask questions about authority
unless the circumstances are ambiguous.
C. Riley v. California
i.
Warrant is generally needed even if a cell phone is seized incident to an arrest
D. Expectation of Privacy at the Border
i.
None
ii.
Search powers extend 100 miles inland
iii.
authority to examine “computers, disks, drives, tapes, mobile phones and other
communication devices, cameras, music and other media players, and any other
electronic or digital devices.”
iv.
No specific suspicion needed for cursory search; reasonable suspicion of
criminal activity needed for forensic examination of devices (only 9th circuit)
v.
Failure to provide passwords can result in seizure of device.
4. NATIONAL SECURITY
A. USA Patriot Act § 215
i.
Passed in the months after 9/11
ii.
Wanted to break down the wall that prevented criminal enforcement officials
from sharing information and vice versa
iii.
Modifies FISA
1. Changed purpose standard to a significant purpose
a. Foreign intelligence gathering must be a significant purpose of the
investigation
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iv.
Only for foreign intelligence information
v.
Granted ex parte by a FISC judge
vi.
No disclosure to parties being surveilled
vii.
NSC used § 215 to authorize the collection of bulk telephone metadata
1. ACLU v. Clapper- this section does not authorize bulk collection
viii.
Expired June 2015
B. Foreign Intelligence Surveillance Act § 702
i.
FISA is able to target persons reasonably believed to be located outside the US to
acquire foreign intelligence information
ii.
There are certain targeting procedures to ensure collection is directed at
persons located outside the US.
iii.
There are minimization procedures
iv.
A significant purpose of the surveillance must be to acquire foreign intelligence
information
v.
Arguments for:
1. Extremely important for national security
2. Has prevented terrorist plots
vi.
Arguments against:
1. People don’t trust the oversight
2. Has evolved from original terms
C. DNA Databases
i.
CODIS – Combined DNA Indexing System.
1. Do not contain a person’s entire genetic code, just fragments useful for
identification
2. Compulsory DNA profiling of qualified federal offenders is reasonable
under the totality of the circumstances (found under the reasonableness
test) and satisfies the 4A requirements. US v. Kincade (9th Cir.)
3. DNA identification of arrestees is a reasonable search that can be
considered part of a routine booking procedure. Probable cause was
already found at the arresting stage. DNA testing is similar to
fingerprinting, only one step more. No significant interest in privacy
more than fingerprinting.
5. HEALTH PRIVACY AND HIPAA
A. Health Insurance Portability and Accountability Act
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i.
Original goal was to permit employees to change jobs without having their new
health plans exclude preexisting conditions
ii.
Establishes national standards for the protection of certain health information
iii.
Establishes technical and non-technical safeguards that need to be put in place
by covered entities
iv.
Protects “protected health information” (defined on pg. 517)
v.
Covers individually identifiable health information
vi.
No private right of action. Enforcement by Secretary of Health and Human
Services
B. Constitutional Right to Privacy
i.
Privacy arguments about healthcare
1. Under cases referring to “substantive due process” SCOTUS has held
there is a right to privacy in the US Constitution
ii.
Griswold v. Connecticut
1. Watershed case for substantive due process privacy
2. An implied “right of privacy” exists within the Bill of Rights that
prohibits a state from preventing married couples from using
contraception
3. Penumbra of the bill of rights
4. The right of privacy in marriage is a concept older that the Bill of Rights
5. Protecting the right to make intimate decisions
6. Dissent: no express constitutional right to privacy
iii.
Roe v. Wade
1. Texas statute criminalizing abortion was unconstitutional and violated
the 14A.
2. Specific and direct harm to the woman by denying this right
3. “Undue Burden” Standard follows Roe in Casey.
a. Standard to evaluate whether abortion restrictions pass
constitutional muster
b. Whether a state regulation has the purpose or effect of placing a
substantial obstacle in the path of a woman seeking an abortion of a
nonviable fetus.
iv.
Lawrence v. Texas
1. Whether under the 14A allows people of the same sex to engage in
certain intimate sexual conduct.
2. Overrules Bowers
3. It is a due process right because when homosexual conduct is made
criminal it discriminates in both the private and public spheres
6. GOVERNMENT RECORDS AND THE USE OF PERSONAL DATA
A. Whalen v. Roe
i.
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Prescription registry case of Schedule II drugs
ii.
Individual interest in avoiding disclosure of personal matters and interest in
making certain kinds of important decisions
1. Court holds the statute does not grievously threaten these interests
enough to establish a constitutional violation
iii.
The right to collect and use this data comes with the duty to avoid unwarranted
disclosures
iv.
Concurrence: central storage and easy accessibility vastly increase potential for
abuse. Technology may change that will create the necessity to curb this kind of
collection
B. Freedom of Information Act
i.
Provides a right to request access to federal agency records or information
unless the information falls under specific exemptions
ii.
Exemptions:
1. Classified information that is properly classified in the interest of
national defense or foreign policy
2. Internal personnel rules and practices of an agency
3. Exempted from disclosure by statute
4. Trade secrets and commercial or financial information
5. Inter- and intra-agency memorandums otherwise not available by law
6. Personnel and medical files
7. Information complied for law enforcement purposes that would
interfere with enforcement; world deprive fair trial; unwarranted
invasion of personal privacy; confidential information; techniques and
procedures; endanger life or physical safety
8. Examination, operating or condition reports prepared by or for
regulation or supervision of financial institutions
9. Geological and geophysical information concerning wells
iii.
DOJ v. Reporters Committee for Freedom of the Press
1. Burden is on the agency to sustain the action
2. The fact that “an event is not wholly private does not mean that an
individual has no interest in limiting disclosure or dissemination of the
information
3. Privacy interest in a rap sheet is substantial.
4. Invasion of privacy decisions cannot turn on the purposes for which the
request for information is sought.
5. Despite already being pieced together from public records, rap sheets
are considered private.
C. Limitations on Public Access to Information
i.
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Kallstrom v. City of Columbus
1. Weighing the privacy interests against the public’s right to know
2. Balance individual interest in nondisclosure of informational privacy
against the public’s interest in and need for the invasion of privacy
where the individual privacy interest is of constitutional dimension.
a. Interest in preserving life and safety of people is extremely high
b. Looked at public’s right to know the internal workings of the police
department to ensure accountable governance. But that releasing
police officer’s files did not narrowly serve this purpose
c. Looking at to whom it was released as being particularly dangerous
D. Megan’s Laws
i.
Databases of personal information about sexual offenders so that people can
learn their identities and where they live.
1. Information like: SSNs, photo, address, prior convictions, and place of
employment
2. Sex offenders argue it violates double jeopardy and ex post facto clauses
3. Does the registry constitute a punishment?
4. Home addresses typically are awarded privacy – aka nontrivial interest
put forth by the sex offender
5. State interest – knowing where prior sex offenders live so susceptible
individuals can be cautioned
6. Sex offender’s interests are not recognized under the penumbra of
constitutional privacy protections
7. FINANCIAL DATA
A. Fair Credit Reporting Act
i.
Regulates credit reporting agencies and companies to make sure the
information they gather and distribute is done in a fair and accurate manner
ii.
Requires credit reporting companies to provide an individual access to her
records, establishes procedures for correcting information, and sets limitations
on disclosure
iii.
Definition of consumer report and consumer reporting agencies important
1. Consumer report – any type of communication by a consumer reporting
agency bearing on a consumer’s credit worthiness, credit standing,
credit capacity, character, general reputation, personal characteristics,
or mode of living.
2. Consumer reporting agency – any person which regularly engages in
whole or in part in the practice of assembling or evaluating consumer
credit information or other information on consumers for the purpose
of furnishing consumer reports to third parties
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iv.
Private right of action; but there is FTC and CFBP enforcement
v.
Permissible uses at pg. 748
vi.
Employers must have consent before consumer reports are used
vii.
Written request is needed for law enforcement access. Certifying info is sought
to protect against international terrorism or clandestine intelligence activities
viii.
To show willful noncompliance with the FCRA, must show that defendant
knowingly and intentionally committed an act in conscious disregard for the
rights of others, no malice or evil motive needed
B. Gramm-Leach-Bliley Act
i.
Requires financial institutions to explain their information sharing practices to
their customers and to protect sensitive data
ii.
Designated to restructure the financial services industries
iii.
Authorizes widespread sharing of personal information by financial institutions
such as banks, insurers, and investment companies within affiliated companies.
1. Can provide nonaffiliated companies if they offer consumer an opt-out
iv.
Only applies to nonpublic personal information – like personally identifiable
financial information
v.
Cannot disclose account numbers or credit card numbers for marketing
vi.
Privacy policies must be posted
vii.
Must establish security standards to protect nonpublic personal information
8. PRIVACY POLICIES, BREACHES AND ENFORCEMENT
A. Federal Trade Commission Enforcement
i.
Industries not covered:
1. Financial institutions
a. Banks
b. Savings and loan institutions
c. Federal credit unions
2. Common carriers
a. Airlines
b. Foreign air carriers
3. Telecommunications carriers
4. Nonprofit institutions
a. Schools
ii.
Scope of § 5 enforcement:
1. Broad jurisdiction; regulates consumer privacy
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2. Prohibits “unfair or deceptive acts or practices in or affecting
commerce:
a. Deception: material representation, omission or practice that is
likely to mislead the consumer acting reasonably in the
circumstances, to the consumer’s detriment
i.
Violation of privacy policies is a deceptive practice
b. Unfairness: if causes or is likely to cause substantial injury to
consumers which is not reasonably avoidable by consumers
themselves and is not outweighed by countervailing benefits to
consumers or competition.
c. Can be both deceptive and unfair at the same time
3. Dominant agency regulating privacy in the US
4. Can obtain injunctive remedies
5. Only FTC can enforce
6. Can issue fines when companies violate consent decrees previously
entered for violation of § 5
iii.
Lacks rulemaking authority under § 5
B. Federal Communications Commission
i.
Privacy rules for ISPs:
1. Need customer permission in advance (opt-in) to share sensitive
information like location, financial, health, social security, web
browsing and app usage.
2. Could use email info unless opt-out
3. Requires clear explanation of privacy practices and implement best
practices to secure collected data
4. ISPs complained that it was an unfair limitation and didn’t fully protect
consumer privacy because single websites were still doing the same
thing
5. Without formal rules ISPs can change their policies
6. Creates security holes that can be exploited by hackers
C. Data Security Breach Notification Statutes
i.
Notify individuals in the event of a security breach where personal information
is leaked or improperly accessed.
ii.
Notice triggering information includes first name or initial and last name AND
SSN, DL number, financial account number plus a password, email address plus
password or security question and answer
iii.
Some states include a reasonable likelihood of misuse standard (minority)
iv.
Generally, require notification whenever there is a reasonable likelihood that an
unauthorized party has acquired personal information
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v.
Some require notification to state agency or attorney general
vi.
Some states require substantive duty to take reasonable steps to safeguard data
vii.
Very few have a private right of action
viii.
Exceptions:
1. Person or agency determines that the security breach has not or is not
likely to cause substantial loss or injury to, or result in identity theft
[Michigan]
2. Illegal use of the information did not occur or is not reasonably likely to
occur, or does not create a material risk of harm to a consumer [N.
Carolina]
9. EMPLOYMENT PRIVACY
A. Workplace Searches and Surveillance
i.
4A applies to public sector employees
1. Individual interest in avoiding disclosure of personal matters
ii.
Private employees enjoy some of the same protections. But 4A doesn’t apply to
all
iii.
Workplace searches
1. Uses the balancing test
a. Whether officials infringed on an expectation of privacy that society
is prepared to consider reasonable
b. Workplace context, recognized employees have reasonable
expectation of privacy against intrusions by police
c. Reasonable expectation of privacy in desk and file cabinets because
not shared with other employees
d. Warrant is unworkable in workplace context
e. Employers interest is the efficient and proper operation of the
workplace
f.
Standard: reasonableness under the totality of the circumstances
i.
Probably search should be sufficiently limited in scope (dicta
from 9th Cir.)
g. Expectation of privacy assessed in the context of the employment
relationship
h. When employee demonstrated expectation by a lock (for ex.) has a
higher weight
i.
If area is pretty public privacy interest is lower (i.e. video in
personnel locker area with heavy foot traffic)
B. Drug Testing
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i.
SCOTUS on drug testing
1. Substantial need of employer (look at type of employment) can create a
special need that may justify a deviation from the ordinary warrant and
probable cause standard
a. When there is no discretionary determination there are no facts for
a neutral judge to evaluate (drug test for certain positions)
2. Government interest is preventing the development of hazardous
conditions
3. Employees involved with law enforcement of drugs have diminished
expectation of privacy in respect to a urine test
a. Not in response to any perceived drug problem
b. Does not cover employees who handle classified information, just
those involved in drug enforcement and use of guns
4. Georgia candidates for state office
a. No perceived drug problem
b. Does not prevent what the drug test is seeking to address because
candidates can abstain
c. No special need revealed
5. NOT SCOTUS – Private employee retail store – look at public policy
a. Private activities of another
b. Private medical facts
c. Holding: tortious invasion of employee’s privacy (3rd Cir.)
ii.
Notice and consent
1. No expectation of privacy since they had been on notice that drug
testing was a condition of employment
2. Employers have a right to investigate into areas which would normally
be private if the investigation springs from business relationship
a. Justifiable concern because hazardous work
b. Undercover investigation revealed serious drug problem in
workplace
3. Issue: is this real consent because there is power relationship?
C. Questioning
i.
Courts have tended to find that questioning is not a 4A search
1. Ex. pysch exam
ii.
Statutory prohibition on private employers using polygraphs
D. Computer Monitoring and Email
i.
Email
1. Employer interest: viruses, hostile work environment
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2. Third party interest: those who send and receive emails from
employees
3. No expectation of privacy in an email voluntarily sent to supervisor
4. Use of employer’s email system – interception of these communications
is not a substantial and highly offensive invasion of his privacy
5. If there is an email privacy policy it might be different if it says there is
a measure of privacy in the policy.
6. Reasonable expectation of privacy from law enforcement in workplace
emails
ii.
Computer Monitoring
1. Look to if there is a policy in place and it is used and employees know of
policy and usage
2. Employee has a reasonable expectation of privacy in the contents of his
office computer
a. Private office and exclusive use of desk and computer
b. No general practice of employer searching computer
3. Employer can search for investigative evidence of suspected workrelated employee misfeasance and it is constitutionally reasonable if it
is justifiable at its inception and appropriate in scope
a. Justified at its inception: whether there are reasonable grounds for
suspecting that the search will turn up evidence that the employee
is guilty of work-related misconduct
b. Appropriate in scope: reasonably related to the objectives of the
search and not excessively intrusive in light of the nature of the
misconduct
4. 4A protects both the office and computer from warrantless searches by
the gov’t unless it obtains valid consent from either the defendant or
one with common authority over the items searched, or apparent
authority.
a. Common authority by employer when it had a policy of and
regularly did monitor employee’s computer usage and employees
were aware
10.
EDUCATION PRIVACY
A. School Searches (4th Amendment)
i.
Some expectation of privacy in schools in personal belongings
ii.
4A applies to public school officials
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iii.
look to reasonableness of the search and the context in which the search takes
place
iv.
New Jersey v. TLO
1. Warrant is unsuited for school environment
2. Two-step process:
a. Justified at its inception?
i.
ii.
iii.
Reasonable grounds for suspecting that the search will turn
up evidence that the student has violated or is violating
either the law or the rules of the school
Not an inchoate and unparticularized suspicion or hunch
Was common-sense conclusion about human behavior upon
which practical people are entitled to rely
b. Search as actually conducted was reasonably related in scope to the
circumstances which justified the interference in the first place?
i.
Measures adopted are reasonably related to the objectives of
the search and not excessively intrusive in light of the age
and sex of the student and the nature of the infraction
3. School interest – effective methods to deal with breaches of public
order and security
4. Student interest – legitimate expectation of privacy and personal
security
B. Drug Testing (4th Amendment)
i.
Vernonia v. Acton and BoE v. Earls
1. Suspected of major drug problems
2. Athletes have very limited expectation of privacy
3. Invasion of privacy not significant because:
a. only for drugs
b. on need to know basis
c. manner in which testing was carried out
4. Government interest – school children shouldn’t be doing drugs and
drug-infested school; custodial responsibility and authority
5. Dissent: blanket searches for history have been considered per se
unreasonable and bad precedent for students learning to be responsible
citizens
6. Too Far?
a. All students
b. No particular drug problem
C. Family Education Rights and Privacy Act
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i.
Prohibits schools from releasing student education records without
authorization from student or parent
ii.
Education records – records, files, documents, and other materials which
contain information directly related to a student and are maintained by an
educational agency or institution
1. Covers records and information from records
2. Not peer grading
3. Not directory information
4. Not personal knowledge derived from direct, personal experience with
a student
iii.
No private right of action. Supposed to provide access and ability to correct
errors.
iv.
Secretary of Education in charge of enforcement.
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