Schools throughout the country have adopted policies
restricting the use of cellphones during the school day, including some that
ban possession of the phones entirely. While a school has leeway to decide how
and when phones may be used, the Fourth Amendment to the Constitution restricts
the ability of any government agency – including a public school – to seize a
person’s property or search the contents of that property, including a phone.
Journalists who use their phones for recording news may have some additional
protection under federal law as well.
Protecting your legal rights starts with understanding what
the law does and does not protect, and learning how to intelligently assert
your rights without crossing the line into defiance or disruption.
Dos & Don'ts
Before a Search
- Do make sure you understand your school’s policy regarding
searches. Taking the time to read and
think over your school’s policy ahead of time allows you to think about whether
the policy is consistent with your constitutional rights.
- Do advocate for a policy change if you believe your
school’s policy infringes on your rights. The Fourth Amendment provides that, while at a public school (which includes
charter schools), students must be free from searches and seizures unless
school administrators can show that they had a “reasonable suspicion” that the
search would turn up evidence of a violation of a specific state law, or of a
school rule or policy. In other words, a school cannot simply “go fishing” into
people’s phone messages in hopes that a rule violation might turn up.
- Do work with the news media – both on-campus and in the
community – to publicize parts of the policy that you feel violate your
rights. Research and write about how
these policies affect you and your fellow students.
If you are searched
- Do understand that you may refuse to consent to a search
of yourself and/or your possessions at any time. Consider asking for an opportunity to consult
a parent or an attorney, or to have a parent present. Understand, however, that even if you
withhold consent, school officials may still conduct a search if they are aware
of facts that would provide reasonable grounds to do so. Importantly, your refusal cannot be used as
evidence that you have something to hide or as evidence that there are
reasonable grounds to search you.
- Don’t attempt to interfere with the search while it is
being conducted. Even if you have
refused consent, you may not interfere with an ongoing search.
- Do maintain a calm and polite tone at all times.
- Don’t lie. Furnishing false information will only hurt
your ability to defend yourself. Even if
you have broken the law or school rules, evidence from the search probably
cannot be used against you if the search is found to be illegal.
After the search
- Do write down the details of the search as soon as you
can, including everything that was said and who was present or who witnessed
it. If other people have been searched,
have them document everything they can remember as well.
- Do ensure that school authorities complied with any
written policies your school has, and do make note of instances where the
search or seizure strayed from the school’s written policy.
- Do complain to higher authorities within the school if you
feel that you were searched in violation of your constitutional rights. Write to your school board or contact your
superintendent to complain.
- Do consult with an attorney if you believe that your
rights were violated and the school is unresponsive to your complaints.
Student journalists and cellphone searches
A federal law, the Privacy Protection Act, forbids the
police from searching for a journalist's confidential
materials without a court order. If you are a student
journalist whose cellphone contains recordings of interviews, or text messages
between you and a confidential news source, then you probably are covered by
the PPA if the police demand your phone (though it’s unclear whether the law
will help if the demand comes from a teacher or principal). If your phone is
taken away, mention the Privacy Protection Act and your rights as a journalist
to put the police on notice.
A 2014 U.S. Supreme Court ruling, Riley v. California, clarified that the Fourth Amendment prohibits police "fishing expeditions" into cellphones without a warrant. The justices agreed 9-0 that the information in a cellphone is so vast that searching it is a serious intrusion into the owner's personal life. (The Riley case didn't take place in a school and the Fourth Amendment does not apply with full strength on school premises, but it is still a caution flag for any government agency that unlimited searches into everything stored on a phone are difficult to justify.) If you are carrying a cellphone that's owned by a parent in an account in the parent's name, the parent may have some constitutional privacy interests in the phone as well.
If your school has a strict cellphone policy, be mindful
that being a journalist gives you no special rights to break rules. If you are
keeping confidential newsgathering material on a phone that you know is
“contraband” on campus, you are living dangerously. Consider using something
The Student Press Law Center’s attorney hotline,
(202) 785-5450, can help match you with an attorney volunteer in your area if you
believe that your rights have been violated.
- Many students are understandably upset when schools search
their possessions. They feel that their
privacy has been invaded, and they want to protest. Nevertheless, it is critical to remain calm
at all times during a search, no matter how much you believe the school is
breaking the law. At no point during the search should you resist or try to
interfere with or obstruct the search.
- Although you may not obstruct the search, you may refuse
to consent to it, and you may also question the reasons for the search. Keep in mind that if you are searched outside
of school by law enforcement, the police must show “probable cause” before you
or your possessions may be searched. If
you are in school, however, a lower standard applies: school officials need
only “reasonable suspicion” that a search of your belongings will lead them to evidence
that you have violated a relevant law or school rule.
- The authority to take away a phone is not the same as the
authority to search what is recorded on it. Even if the school is within its
legal authority to confiscate a phone, searching the contents of the phone is
not allowed unless there is reason to believe the phone contains evidence of
illegal or prohibited behavior.
- School rules and policies do not trump the Constitution.
If the school insists that it need not follow the Constitution because it is
bound by school policy, then the school is wrong. A policy that is inconsistent
with the Constitution is legally void.
- The Constitution does not give you any special rights to
insist on having or using a cellphone on campus. It protects you only against
unreasonable seizures and searches.