Calling for backup


Georgia police use subpoena to track down high school students





With the rise of social networking Web sites such as MySpace.com and Facebook.com, students are increasingly getting more attention from school administrators about the sites they create and access off-campus.  

In a September search for the anonymous authors of a sexually-explicit MySpace page, a Georgia high school pulled out all the stops, using a police-issued subpoena to track down two students.

North Oconee High School Principal John Osborne said he remembers the day as “tumultuous” and “a nightmare” when his students discovered they had been mentioned on an anonymous MySpace page containing sexually explicit gossip and rumors. 

Osborne said he immediately moved to find the students responsible.

“I felt it appropriate to get involved in this one because of the magnitude of the disruption during the course of the school day,” Osborne said.

As a result of the Web page, several students sought counseling in school while others missed school days, causing a “major disruption” in school, Osborne said.

It turned out that two 15-year old female students created the page, titled “NOHS Gossip,” posting graphic details of alleged sexual interactions between their classmates. 

“This blog was way out of bounds,” Osborne said. “I have been doing this for 22 years and I have never seen anything like what was written on that blog.”

Osborne refused to disclose exactly what was written on the Web page, but described the comments as “very much inflammatory and derogatory toward many students” in school.

“Nobody knows how true any of it was,” Osborne said. “The students posted some pretty bad things about several students.” 

The anonymity of the creators of the MySpace page prompted an investigation in which the principal sought help from Lt. David Kilpatrick of the Oconee County Sheriff’s Office. When the investigation came up short, the police issued a subpoena to trace the blog’s activity. Although officials said they had no intent to file criminal charges, subpoenas were issued to telephone company BellSouth as well as Web sites MySpace.com and Yahoo.com.

Osborne said throughout the investigation, officials kept in mind “we weren’t dealing with criminals; we were dealing with kids.”  

The police found that the students created the MySpace page from a computer at a parent’s home in Clark County, an area outside of Oconee County, where the high school is located. 

Kilpatrick said both students initially tried to blame each other for the Web page after police identified them, but both were suspended. 

‘Good working relationship’

Osborne said the high school’s conduct code covers circumstances under which the administration can regulate student activity in or out of school, including expression that would normally be protected under the First Amendment.

The school’s conduct code states it is applicable to students on and off school grounds if they participate in activity that “if committed at school or during a school-related activity, would endanger the health, safety, and well-being of other students, teachers, and school personnel or would disrupt the educational process.”

However, a number of courts have rejected schools’ efforts to punish students for expression that occurs outside of school.

“I agree [the blog] is freedom of expression, I have no problem with that,” Osborne said. “But when false statements are made against students under the name of the school, then I’d very much argue that it’s my job to defend those kids.”

While Osborne, a self-proclaimed proponent of free speech and freedom of expression, said the students “crossed the line” in creating the blog, experts questioned whether the school and the sheriff’s office overstepped their bounds in employing subpoena power to track down the students for expression they engaged in outside of school. 

“Nothing illegal was done,” said Douglas Lee, a legal correspondent for the Washington, D.C.-based Freedom Forum First Amendment Center. “But the school used the police as a mechanism to get information they couldn’t get.”

A subpoena is an order issued by a court typically at the request of a law enforcement agency or a private litigant in a court case. 

In this situation, the police department said it did not intend to file criminal charges, Kilpatrick said.

But Osborne said that the sheriff’s department “could actually have filed charges.”  

“We have a good working relationship with them,” Osborne said. “We weren’t dealing with felony criminal acts as much as a distraction in school.” 

Kilpatrick referred to subpoenas as “fact-finders” and said that probable cause of illegal acts provided sufficient reason to “dig deeper.” 

Kilpatrick said the subpoena was obtained under title 16-12.103 of the Georgia Code, which states that it is unlawful to display sexually explicit images in “any book, pamphlet, magazine, printed matter however reproduced, or sound recording” accessible by minors. The law does not mention the Internet.

Adam Goldstein, attorney advocate for the Student Press Law Center, called the subpoena use in this situation “especially bizarre.”

“Subpoenas are for law enforcement purposes, not to unmask enemies,” Goldstein said.

The State Bar of Georgia warns against the misuse of subpoenas, and says on its Web site that it should  “not be requested when in fact no hearing or trial has been scheduled.”

BellSouth, the Internet service provider the two students used to access MySpace.com, contributed information to the investigation without objection because they received a valid, court-issued subpoena, said Brent Fowler, a spokesperson for BellSouth.

“If there is no subpoena, BellSouth does not turn over information,” Fowler said. “If we received a court-issued subpoena, we are required to respond.”

Fowler would not comment directly on the case.

Perspective

Lee said he would caution against this process becoming the norm.

“It’s the school using the police for what it couldn’t do otherwise; it makes it look a little suspect,” he said. “But it depends on your perspective.”

Shana Kemp, spokesperson for the National Association of Secondary School Principals, said dealing with student activity on the Internet is unfamiliar ground for schools, but each district has its own rules to handle “those types of situations.”

“We are seeing a greater trend where kids are using the Internet to express themselves,” Kemp said. “It’s something that schools need to take into consideration to deal with derogatory comments.” 

Kemp said she has received several calls claiming that principals are “cracking down” on student Web sites, but there is no agreed-upon policy between schools to deal with rising student Internet activity. 

American Association of School Administrators Attorney Robert Ashmore said he has noticed an increase in actions taken by school administrators to teach students, parents and teachers about Internet responsibility.

“I’d like to see the schools fulfilling the function of educating students and parents to both their rights and their risks of improper use and how that can hurt students as well as others,” Ashmore said. “Schools should have a comprehensive policy that would discuss the parameters of proper use as well as the areas that would be considered over the line.”

Ashmore said school administrators need to acknowledge that as more students are prone to write “the wrong thing without thinking through” the consequences.

“Generally, schools [intervene] if there has been substantial disruption [of the school] – that would be the way to draw the line,” Ashmore said.

Goldstein said he questions the ease with which information regarding student activity on the Internet was obtained. 

“The point of a subpoena is to gather information for law enforcement or court purposes,” Goldstein said. “They should not be used to vindicate rights that don’t exist in court or criminal law.”

The mediums outlined in the policy, however, do not include the Internet.

Education the key

The two students are now singing a bittersweet tune after dodging a potentially bad situation that could have landed them in jail, Kilpatrick said.

“Their biggest defense is that they are juveniles,” Kilpatrick said. “If they had been 17, they would have been locked up.”

The students, whose names could not be obtained because they are juveniles, faced a disciplinary hearing on Oct. 17 that included Oconee School District Assistant Superintendent John Jackson. 

Jackson refused to comment on the outcome of the disciplinary hearing because of the students’ ages, but said the hearing might be an example for other students potentially involved in future investigations.

Osborne said all parties involved supported the outcome of the hearing and are “tickled to death with the way it turned out.”

Carol Knopes, director of education projects at the Radio-Television News Directors Association & Foundation, emphasized how important it is for students to understand the possible repercussions of their speech in order to avoid disciplinary action in school.

“Students need to have some journalism [education] to learn the responsibility to use a very large megaphone like MySpace,” Knopes said. “They will express themselves no matter what. What we have to do is to make sure we are creating good citizens and that they are learning the responsibilities that come with First Amendment rights.”

Phil Hartley, general counsel for the Georgia School Boards Association, said he would not comment on the case, but that social networking Web sites have the potential to cause major disruptions in school. 

“Schools are having a real difficulty finding ways to deal with the problems that get created when students utilize that type of resource which, by its very character, has a wide impact and implication,” Hartley said.

The “NOHS Gossip” MySpace page has been removed from the Web site since the “major disruption” it caused in school, Osborne said. He also said he has no reservations in taking the same measures if this situation arises again in the future.

“[The situation] could have been handled a lot differently if people were honest,” Osborne said. “I would do it again if I needed to.”


reports, Winter 2006-07