A call for help


Analyzing school searches and seizures of cell phones





Many K-12 schools ban or restrict the use of cellular phones in school. Imagine that you attend a school with a strict no-cell phone policy: phones can’t be turned on during school hours, and you can’t use your phone to text or to access social networking sites while at school. Can your school conduct a search to determine which students are violating this rule? If school administrators find out that students have been using phones during school, can they search the phones to see who the students have called or texted, or what websites they’ve visited?

School searches and seizures of students’ cell phones are becoming increasingly common. The confiscation of phones is of special concern to student journalists, because “smart” phones are becoming the Swiss Army knife of newsgathering, capable of shooting photos and video, recording interviews, and holding endless virtual pages of notes.

While administrators often argue that searches are necessary to protect students from harassment and to protect the school from liability, the searches also impact student privacy rights. This article will describe the current law on cell phone searches and seizures, and explain why many school policies and practices are skirting on the edge of what is constitutionally allowed. It will also offer some practical tips for how to intelligently assert your rights if your phone is searched or seized, especially if you are using the phone as a newsgathering tool.

Student privacy vs. student protection

Because public schools are government agencies, their ability to seize and search property is limited by the Fourth Amendment. The Fourth Amendment provides that people have a right to be free from unreasonable searches and seizures.[1] This right applies to minors as well as adults; however, the question of what constitutes an “unreasonable” search and seizure in a K-12 school is different from what is “unreasonable” in the adult world.

Outside of school and for all adults, law enforcement needs to show “probable cause” before a person’s possessions may be searched. “Probable cause” essentially means that the person conducting the search (usually a police officer) must have a reasonable belief that the person or place to be searched is concealing evidence of a crime.[2] In contrast, school administrators need only show “reasonable suspicion” before they may search a student’s possessions. To show “reasonable suspicion,” school administrators don’t need the same level of certainty that would be required to establish probable cause.[3] Thus, although “reasonable suspicion” may sound similar to “probable cause,” courts have acknowledged that it is a less exacting standard. What constitutes a “reasonable” suspicion in the school context depends on the dangerousness of the suspected offense and the certainty of the information that the school has.[4] Importantly, having a “reasonable suspicion” means that administrators must be reasonably certain that their search will turn up something related to a rule violation or a crime.

Requiring that government agents have a provable factual basis to believe that a rule or law has been broken before conducting a search helps protect people from unconstitutional invasions of privacy. The courts have developed standards such as probable cause and reasonable suspicion as a means of balancing public safety against personal privacy. Some schools, however, are stretching these limits with policies that push student privacy into the background when it comes to the contents of cellular phones.

Troubling occurrences

Changes in technology are presenting greater opportunities for conflicts over student privacy. A generation ago, book-bags and lockers were the center of disagreements over the scope of schools’ search-and-seizure authority. Today, advancing phone technology has given students the ability to carry around vast amounts of information, as well as to communicate through texts, chats and Facebook messages.

Now that students can send instantaneous electronic messages, administrators fear that harmful communication, such as harassment or bullying, will proliferate. Schools have responded to this perceived threat by adopting policies and practices that increasingly encroach on students’ personal privacy. In recent years, administrators have attempted to access student information in new and unprecedented ways, including punishing students who refuse to provide the information requested.

In one recent example, a high school cheerleader in Mississippi was told that she needed to provide her Facebook login information to her coach as a condition of remaining on the cheerleading squad.[5] Mandi Jackson was disciplined after her coach logged into Jackson’s Facebook account and read private electronic messages in which the student criticized a classmate. The school justified the coach’s behavior by saying that the coach was looking at all team members’ social media pages for evidence of alcohol or drug use.

The Jackson case exemplifies the aggressiveness with which some schools have probed into their students’ electronically documented private lives, even where there is no particular reason to believe that a law or rule has been violated.

In 2010, a school in Virginia sought guidance from the state’s Attorney General, asking whether a teacher could confiscate and search a student’s phone if a classmate complained that the student had sent a harassing text message.[6] Attorney General Ken Cuccinelli responded that the teacher’s actions would not violate the student’s Fourth Amendment rights; however, he went further, noting that searches of student cell phones and laptops were permissible whenever they were based on reasonable suspicion that the student was violating the law or school rules.

Although Cuccinelli did say that the scope of the search must be “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,” the broad language of his opinion gave wide license for school officials to search student electronic devices anytime they believe any law or rule has been violated, even one not requiring the use of a phone. (While it seems likely that the Attorney General intended that the law or rule violation should somehow relate to actions taken with the phone, he did not employ such limiting language in his opinion. Read literally, the opinion could give an administrator the green light to search a student’s phone even if the student is simply tardy or is walking the halls without a pass.)

Although the Virginia opinion is merely advisory and affects only one state, many schools across the country have adopted similarly worded policies that are comparably overbroad or that fail to address the extent to which a student’s phone may be searched. For example, the policy at one high school near Bakersfield, Calif., provides for the confiscation of phones if students bring them to school; however, the policy does not state whether and how a school official may search a seized phone.[7] Without guidance or limitations, administrators may feel free to search confiscated phones as they see fit.

A more balanced policy can be found at Linden Unified School District, another California district. Linden’s policy states that administrators may not read private text messages stored on students’ phones unless there is “good reason to believe” that the search will show that a student has violated a law or school rules.[8] Even if good reason exists, the policy requires that the search be limited to the alleged infraction that led to the phone’s seizure. This means, for example, that administrators cannot search all of the text messages on a student’s phone if the infraction is merely having the phone switched on during class. Precisely worded policies that place limitations on the extent to which administrators can search more closely adhere to the balance struck by the Fourth Amendment.

A split in the courts

Some of the lack of clarity in schools’ approach to the privacy of cell phones can be attributed to the failure of federal courts to set down clear constitutional standards. Courts have reached differing results when analyzing the constitutionality of cell phone searches, whether in schools or in the off-campus realm of citizen/police encounters.

In 2006, a district court in Pennsylvania heard a case in which a teacher confiscated a student’s phone after the student displayed it during school hours, in violation of school policy.[9] The teacher and assistant principal proceeded to use the phone to call nine other students listed in the student’s directory to ascertain whether those students also had their phones on in school. The administrators also searched the student’s text messages and voicemail, and held an instant message conversation with the student’s younger brother. The court denied the school district’s motion to dismiss the case, holding that the student stated viable claims that his rights had been violated.

In contrast, a court in Mississippi recently held that, upon witnessing a student improperly using a cell phone at school, it was reasonable for school officials to conduct a relatively extensive search of the phone. In that case, J.W. v. DeSoto County School District, a teacher saw the student using a cell phone and confiscated the phone.[10] Although the teacher suspected no further wrongdoing by the student, he opened the phone and viewed the pictures stored on it. Several pictures depicted the student dancing in his home bathroom, and one of them showed another student holding a BB gun. After viewing the photos, the teacher ordered the student to the principal’s office, where the student was punished for the content on his phone.

The court declined to overturn the discipline. The judge reasoned that the student’s phone was contraband the moment it was brought on campus. Consequently, school officials could use the phone to determine to what end the student was improperly using it, and that their search of the phone’s photos was not unlawful.

The U.S. Supreme Court has not yet weighed in on the subject of searching and seizing phones in school. But the Court’s most recent school-search case gives some idea of the standards that the justices would apply if a student challenged a search under the Fourth Amendment.

In Safford Unified School District v. Redding,[11] the Court decided that Arizona school administrators violated the Fourth Amendment by strip-searching an eighth-grader who, according to a tip, was believed to be carrying ibuprofen pain-relief pills. The Court ruled that the legality of a search varies according to: (1) the severity of the intrusion on privacy, (2) the reliability of the school’s information, and (3) the dangerousness of the item that is being searched for.

According to the standards set forth in the Redding case, it should be more difficult for a school to justify searching truly private material on a cell phone (such as text messages between individuals) as opposed to non-private material, such as postings to a publicly viewable Facebook wall. And the intrusion will be easier to justify if the school believes that the messages involve dangerous behavior – for example, arranging a drug deal or a fight.

Courts have not decided many school cell phone search cases, so often it is logical to analogize to searches of adults’ phones to determine whether and to what extent a student’s phone may be searched. Yet, the courts are clearly divided about whether law enforcement may search a cell phone without first obtaining a search warrant.  

For example, the California Supreme Court has held that law enforcement may search a phone without a warrant during an arrest of an individual because the phone is the arrestee’s personal property, and personal property may be searched incident to an arrest (for example, the trunk and glove box of a car may be searched after a car is towed and impounded).[12]

In contrast, the Ohio Supreme Court has held that unless an officer’s safety is at stake or there is an emergency, the Fourth Amendment prohibits warrantless searches of cell phones seized during an arrest.[13] The court reasoned that a cell phone’s ability to store extensive data gives owners a higher level of privacy, thus necessitating a warrant before a search can be performed. Overall, about three-fourths of the publicly available court rulings have taken the side of the California court, while the rest follow the approach of the Ohio court.[14]

This division in the courts indicates a need for clear rules setting out when and how extensively a phone can be searched. Until such constitutional standards are clarified, schools will be left to make policy on their own, and at least some are likely to overreach and allow for the content of phones to be searched even when administrators have no reasonable suspicion that the phone is related to a violation of a school policy or rule.

Policy arguments against searches

Legally, schools’ ability to take away and search phones is limited by the Fourth Amendment. But there are also significant public policy and practical arguments against giving administrators wide-open authority to look through the content of students’ phones.

For example, giving administrators an unfettered license to search students’ possessions necessarily sets a questionable example for students. Schools are the government, and the message that government agents get to read people’s private messages with little or no basis for suspicion is likely to breed distrust and cynicism.

Students who are experiencing family or emotional turmoil may use their phones to reach out confidentially for help to a trusted friend or counselor. A student who believes that her phone is at risk of being searched and its messages read or played by school administrators may be less likely to get needed help. As phones can store increasingly more information, unlimited phone searches can probe very deeply into students’ lives. Students may also use their phones for activity that they legitimately want to keep private from their school administrators for fear of retaliation, such as filing complaints about the school or contacting legal counsel.

Additionally, many schools are awakening to the learning possibilities that can be furthered through the use of phones, and programmers are constantly designing educational apps for school use. Searching and seizing phones detracts from their emerging potential as classroom tools. In today’s world, media literacy is a fundamental life skill, and in order to acquire this literacy, students must familiarize themselves with technology and learn to use it responsibly.

Student journalists face particular concerns when their cell phones are searched, as cell phones are increasingly becoming a journalist’s newsgathering tool of choice. As student journalists increasingly use their smart phones to communicate with sources and to store information, searches of student journalists’ phones can reveal sensitive and confidential information. In addition to invading a journalist’s personal privacy, these searches also present the risk that confidential sources and information will land in the wrong hands, thus compromising the journalist’s credibility and ability to properly do her job.

What to do if your phone is seized

Although phone searches and seizures can be intimidating, students can take precautions to protect themselves.

As a student, it is critical to know your school’s policy toward cell phones. By doing so, you can both make sure that you are complying with it and also assess whether the policy is consistent with constitutional principles. A policy that gives administrators total discretion to look at anything in a student’s phone for any reason is almost certainly unconstitutional.

If you identify ways in which your school’s policy is constitutionally deficient or simply overreaching, take steps to publicize these shortcomings and to pressure your school district to adopt changes. Often, such policies have been purchased as “one size fits all” standardized policies, and have been enacted with very little input from those most affected.

In particular, it is advisable for the search policy to prohibit an administrator from conducting a search unless it is related to the particular violation for which the phone was seized in the first place. For example, a student found violating a policy requiring all phones to be off could not have his phone searched for any reason other than to determine that the phone was in fact on; once that is determined, then the search should end.

Even if the school’s policies look good on paper, they may still not be carried out properly in practice. Once again, knowing the contours of your policy will help you assert yourself if your phone is taken away and searched in violation of the school’s own rules. As a journalist, you should ask questions about the school’s seizure of phones. How often does it happen? Which school personnel are allowed to search the contents of phones, and what standards are they given? Do not be afraid to publicize searches that violate established school rules, as administrators must comply with the policies they establish.

As a journalist, if your phone is taken by a police officer (as opposed to a teacher or principal), then you may have additional legal protections beyond the Fourth Amendment protection that every citizen enjoys.

A federal law, the Privacy Protection Act, limits the type of journalistic material that can be seized by law enforcement without a court order.[15] The Privacy Protection Act protects any place that a journalist stores work product, including inside of a cell phone. Although the Act has never been applied in court to a student journalist, the law’s broad language clearly favors an interpretation that includes student journalists; in fact, Congress enacted the law in 1980 specifically because of a search of a student newsroom at Stanford University.

If your phone contains unpublished photos, video, notes or interviews gathered for a legitimate journalistic purpose and the police try to take it away, you should mention the Privacy Protection Act and – if the phone is taken anyway – call a lawyer as soon as possible to try to prevent police from searching it.

The Privacy Protection Act, however, is limited. It probably does not apply if the person doing the search is not a law enforcement officer or working on behalf of a law enforcement agency. And there is an exception that allows police to search without a court order if the journalist himself is suspected of breaking the law. So if the police are searching your phone because they believe that you made a threatening Facebook post or sent a threatening text message, then the PPA may not help you.

Journalistic material stored in a phone may also be protected by your state’s reporter privilege law, sometimes called the reporter shield. Shield laws vary by state, but they usually allow a reporter to, at the very least, refuse to give up the identity of confidential sources (and some laws go much further and allow a reporter to refuse a demand for any unpublished material, such as notes).

If you are concerned that your phone contains confidential journalistic material that would cause harm if it fell into the hands of school authorities – such as compromising the identity of a confidential source – then you should claim the protection of the reporter’s privilege and (politely and calmly) ask that you be given a chance to consult an attorney before surrendering the phone.

Finally, the photos and recordings that you have made with a phone are your property, and even if a school is legally entitled to search the phone, it is never permissible for a school to simply destroy a student’s photos or other personal property. (Because many school employees don’t fully appreciate – or respect – this legal principle, it’s a very good idea to back up any essential data from a phone, such as emailing yourself copies of news photos.)

Above all, if your phone is seized or searched, remain calm, and politely express your disagreement with the search, citing the law or school policy if necessary. Do not try to interfere with or obstruct the search, but remember as much as you can about it so that you can report the details later. If you feel the search was in violation of your rights, report it to higher-up school authorities or contact the Student Press Law Center for help.

Conclusion

Although schools are increasingly implementing invasive search and seizure policies, students need not feel intimidated. By becoming informed about the law and your school’s policies, you can stand up and knowledgeably defend your rights. Schools rarely are thinking about journalists when they make policy about cell phones – many administrators are not schooled in the journalistic uses of a smart phone. So you may have to educate your school about why, as a journalist, you have a special privacy interest in what is recorded on your phone, and that you may be entitled to additional privacy protection.

Attorney Laura Napoli, a former SPLC legal fellow, practices with the New York law firm Weil Gotshal & Manges.

Endnotes

1 U.S. Const. amend. IV.

2 See, for example, Carroll v. United States, 267 U.S. 132 (1925) (allowing the warrantless search of an automobile if there was probable cause to believe that evidence was present).

3 New Jersey v. T.L.O., 469 U.S. 325 (1985) (requiring that school administrators have a “reasonable suspicion” before performing a search).

4 Safford Unified School District v. Redding, 129 S.Ct. 2633 (2009) (holding that strip search of middle school student violated the Fourth Amendment when school lacked reasonable suspicion that over the counter drugs in student’s possession presented a danger or that drugs were concealed in student’s underwear).

5 Brian Stewart, “Student files lawsuit after coach distributed private Facebook content,” SPLC News Flash (July 22, 2009), http://www.splc.org/news/newsflash.asp?id=1938.

6 See Frank LoMonte, “AG Cuccinelli’s go-ahead to search student cell-phones raises Fourth Amendment questions,” SPLC Blog (Nov. 29, 2010), http://www.splc.org/wordpress/?p=1246.

7 Jorge Barrientos, “Schools Examining Cell Phone Policies to Address Distractions,” Bakersfield.com (Jul. 18, 2010), http://www.bakersfield.com/news/local/x1685666237/Schools-examing-cell-phone-policies-to-address-distractions.

8 “School District Agrees to Protect Student’s Privacy,” ACLU of Northern California, http://www.aclunc.org/issues/technology/blog/school_district_agrees_to_protect_students_privacy.shtml.

9 Klump v. Nazareth Area Sch. Dist., 425 F. Supp. 2d 622 (E.D. Pa. 2006).

10 2010 WL 4394059 (N.D. Miss. Nov. 1, 2010).

11 129 S.Ct. 2633.

12 People v. Diaz, 244 P.3d 501 (Cal. 2011).

13 State v. Smith, 124 Ohio St.3d 163 (Ohio 2009).

14 Stephanie Francis Ward, “States Split Over Warrantless Searches of Cellphone Data,” ABA Journal (Apr. 1, 2011).

15 Privacy Protection Act § 2000aa, 42 U.S.C. Ch. 21A (2010).



reports, Winter 2011-12