With cell phone communication among teenagers rising, public school administrators are confronting new challenges such as sexting and cyberbullying, with little assistance from the legal system on how to handle these behavioral problems. While the Supreme Court has addressed the application of Fourth Amendment protection from unreasonable searches and seizures to schools’ searches of student, it has yet to apply this school search standard to cell phones and similar technology in schools. Additionally, it is uncertain whether the First Amendment provides any extra protection to students’ expectation of privacy in the contents of their cell phones.
A recently settled case, which the ACLU brought on behalf of a female student in a Pennsylvania high school, highlights the major consequences and intrusion of privacy that could arise when school officials choose to search through a student’s phone. The student, N. N., brought a lawsuit against Tunkhannock Area School District, alleging that both her First and Fourth Amendment rights had been violated after the school performed an unreasonable search and seizure of her cell phone, which led to private information being given to law enforcement. N.N. was caught using her phone during school hours, a violation of school rules, and her teacher rightfully seized the phone and turned it over to the principal. However, rather than simply maintain possession of the phone, the principal searched through the phone and accessed the phone’s camera function. He discovered naked pictures of the student and contacted law enforcement officials. At the end of the school day, N.N. reported to the principal’s office where she was told that her phone would not be returned to her, because he had found the photos and turned her phone over for criminal prosecution instead.
Although school policy stated that the punishment for misusing a cell phone once on school property was a one-day confiscation and one Saturday detention, N.N. was suspended from school for three days. The Wyoming County District Attorney’s Office did not formally charge N.N., but the district attorney did threaten to bring felony child pornography charges against her unless she undertook a five-week re-education program. N.N. agreed to take the course, which was designed for victims of sexual violence and abuse. N.N. was forced to write papers about how her conduct was wrong, although she maintains that the photographs were private and sent only to her boyfriend.
In response to the N.N. case and other cases involving cell phone searches of students, the ACLU has drafted a proposed cell phone policy for school districts to utilize and adopt. The policy allows cell phones on campus, but prohibits their use during class hours, to exchange naked pictures, and generally the use of cell phones “in a manner that poses a threat to academic integrity, disrupts the learning environment, or violates the privacy rights of others. Notably, the policy prohibits any search performed on the phone by school officials without student or parental consent. If school officials reasonably suspect that a student’s cell phone contains content that violates criminal laws or has been used in a criminal manner, they must confiscate the device, contact law enforcement authorities, and surrender the device to these authorities if they produce a valid warrant.
While the ACLU’s efforts to protect student speech and privacy are admirable, there are many potential difficulties that schools would encounter by adopting this policy. A policy that completely forbids searches may cause harm to students or go too far in eliminating reasonable, searches performed with good intentions. For example, if a teacher found a cell phone in a classroom, he would be forbidden from accessing the phone’s directory or information in order to determine its owner. If a student has an emergency or accident, the teacher would be forbidden from searching the cell phone for contact information in the event that the emergency contact on file could not be reached. Additionally, subjecting students to immediate criminal repercussions for their private content rather than conduct an independent search could undermine schools’ efforts to maintain order. Criminal proceedings could put students through dramatic, frightening ordeals that could fail to produce results and only create more stigma and embarrassment for the student. Thus, while the ACLU policy recognizes students’ rights to privacy, its ban on searches and immediate turnover to law enforcement are too severe and have the potential to backfire and cause harm to students.