ACLU starts student cell phone debate

School Safety Partners
The ACLU of Washington says it violates privacy to allow school administrators to search student cell phones without the permission of students or their parents.

ACLU Claims Proposed Policy on Student Cell Phone Searches Violates Privacy
SEATTLE, September 1, 2010 -- The ACLU of Washington has told the Oak Can school officials seize student cell phones? Harbor School Board that a proposed policy for searching student cell phones goes too far. The ACLU-WA said it violates privacy to allow school administrators to search student cell phones without the permission of students or their parents. The ACLU-WA has recommended a revised policy that would respect the privacy of students while enabling the district to address concerns about sexting and other troublesome student uses of electronic devices. "The proposed policy is overly broad. Searching telecommunication devices impinges on student privacy significantly more than a traditional backpack or locker search. Cell phones store a virtually limitless amount of highly personal information dating back months or years," said ACLU-WA Technology and Liberty Project director Brian Alseth, in a letter to the district superintendent. "By searching a smart phone, administrators could determine a student's political views, whether a student is having relationship problems, whether their parents might be considering a divorce, whether the student has personal health issues or is pregnant, and whether the student likes sports, World of Warcraft, or shopping for lingerie," said Alseth

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The ACLU-WA believes a more effective policy would be that school officials may seize devices that they reasonably suspect to contain illegal content and may offer to turn the devices over to law enforcement. Law enforcement officials must then proceed to obtain a warrant to search the device where there is probable cause to do so. And when school officials have reasonable suspicion that a student has at school a personal telecommunication device that has been used to create, send, share, or view content in violation of school rules, or in a manner that disrupts the learning environment or violates the privacy rights of others, officials may confiscate the device and return it to the student or parent at the end of the school day. The ACLU said the district can deter sexting at school by banning students from sending, sharing, or viewing sexually explicit material while at school; the proposed policy includes such a ban. However, "sexually explicit material" should be specifically defined so that both students and administrators have reasonable notice about what is banned and what is not. Further, the policy should not ban mere possession of such material – the policy would be nearly impossible to enforce given that a student's telecommunication device could contain such content without the student's knowledge or consent. "What matters is whether a student is viewing, sending, or sharing the material at school, not whether such material is inadvertently on a device as a result of a third party's message or a student's web browsing while away from school," said the ACLU-WA's Alseth.

View Oak Harbor proposed student cell phone policy View ACLU letter to Oak Harbor School Board View ACLU recommended cell phone policy

http://www.schoolsafetypartners.org/law/706-ACLU-starts-student-cell-phone-debate.html

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4314.1 STUDENTS AND TELECOMMUNICATION DEVICES Definitions:

A. Telecommunication devices include any device that can electronically receive or capture text,
audio, or images and/or electronically transmit text, audio, or images.

B. Sexting means sending, forwarding, displaying, retaining, storing or posting sexually explicit,
lewd, indecent or pornographic photographs, images or messages by or on a cell phone, computer or other electronic means during school hours or school activities on or off campus; while on school district property, during any recess, lunch or leave periods on or off school district property; or beyond the hours of school operation if the behavior detrimentally affects the personal safety or well-being of school-related individuals, the governance, climate or efficient operation of the school; or the educational process or experience.

C. Cyberbullying means “harassment, intimidation or bullying” via any intentional gesture, any
intentional electronic communication or any intentional written, verbal or physical act or statement initiated, occurring, transmitted or received by a student at school that a reasonable person under the circumstance should know will have the effect of: 1. Insulting, mocking or demeaning a student or group of students causing substantial disruption in, or substantial interference with, the orderly operation of the school; or 2. Substantially interfering with a student’s education; or 3. Creating an intimidating, threatening, hostile or abusive educational environment for a student or group of students through substantially severe, persistent or pervasive behavior.

D. Third parties include, but are not limited to coaches, school volunteers, parents or guardians,
school visitors, service contractors or others engaged in district business or activities that are not directly subject to District control at inter-district and intra-district athletic competitions or other school events. Reporting Violations: Any student, employee, parent or guardian or third party who has knowledge of conduct in violation of this policy or any student who feels he/she has been a victim of cyberbullying, sexting, menacing, retaliation or reprisal in violation of this policy shall immediately report the concerns to:

A. The building principal or his/her designee; B. A teacher who will be responsible for notifying the building principal or designee immediately if
the matter cannot be adequately addressed by the teacher, or warrants administrative intervention;

C. A counselor, who is responsible for notifying the building principal or designee immediately if the
matter cannot be addressed by the counselor or is sufficiently serious to warrant administrative intervention; or

D. The superintendent of schools or designee.
Investigating: The principal or designee shall be responsible for timely investigating a complaint made under this policy. The investigation, witness statements and evidence shall be documented along with the outcome of the investigation. Searches: Should the administrator have reasonable suspicion, based on objective and articulable facts, that a search of student’s telecommunication or electronic device will reveal a violation of the law or school rules, a search of the device is permitted. The following procedure shall be followed for the search of telecommunication and electronic devices:

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4314.1 1. An administrator may confiscate or with reasonable cause search the device, which shall only be returned to the student’s parent/guardian. 2. The administrator will ask the student to cooperate with the search of the device. 3. If the student refuses to cooperate in the search, the student should be held until the student’s parent or guardian is available to consent to the search. If a parent or guardian cannot be reached in a reasonable time, the principal may conduct the search without the student’s consent. The scope of the search will be limited to the violation of which the student is accused. 4. At least two staff members, including one administrator and a second administrator or designee will be present at all times during the search. 5. The scope of the search will be limited to the violation of which the student is accused. The student’s parent will be informed of the search and invited to view the findings. 6. Regardless of consent, if a violation of state or federal laws is suspected the matter will be referred to law enforcement. 7. In the course of the investigation, administrative staff will not send, receive or unnecessarily view or transmit sexting photographs or any other inappropriate images on either the district’s or their personal electronic devices. The examination or viewing of the evidence/information will be limited to the extent necessary to determine that misconduct occurred. Parent or Guardian Notification: Parents or guardians of all students identified in the report shall be notified of the investigation and informed of their students’ involvement in the incident. Discipline: Students whose behavior violates this policy will be subject to discipline up to and including expulsion. Law enforcement will also be notified when conduct may violate criminal laws. In addition to discipline, the district will assist students and/or parents or guardians to resolve concerns and issues prior to the use of the formal criminal complaint process. These interventions may include consultation, counseling, education, mediation and/or other opportunities for problem-solving. In imposing discipline the administrator will take into consideration the context of the events, all relevant circumstances, and the parties’ prior behavior, the nature of the behavior and its potential harm and the emotional and/or physical harm resulting from the reported party’s actions. Exceptional misconduct penalties may be imposed, if in the opinion of the administration it is warranted.

Cross References:

4312 4363 4424 5560

Student Privacy and Searches Threats, Harassment, Intimidation, Bullying, and Violence Relations with Law Enforcement Acceptable Use Policy for Student and Staff Use of Electronic Resources

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Brian J. Alseth TECHNOLOGY AND LIBERTY PROJECT DIRECTOR

August 26, 2010 Dr. Rick Schulte Superintendent, Oak Harbor School District 350 S. Oak Harbor Street Oak Harbor, WA 98277 Re: Proposed Changes to Students and Telecommunication Devices Policy

Dear Dr. Schulte, The ACLU of Washington is writing in regard to the changes proposed by the School Board to your Students and Telecommunication Devices policy (policy 4314). As a policy, the ACLU of Washington believes that to protect student privacy, school administrators should not search students’ telecommunication devices without the permission of the student or parents. As we understand it, the proposed revisions to the policy would prohibit students from sending, sharing, viewing, or possessing material of a sexually explicit nature on a cell phone or other electronic device while the student is at school. In addition, the policy revisions would permit school administrators to search the device when they have reasonable suspicion that such a search will reveal a violation of school rules. The revisions also state that “[c]ontent or images that violate criminal laws will be forwarded to law enforcement.” We understand the school district’s need to address the problem of sexting and other improper student uses of telecommunication devices, but we have concerns with several aspects of the proposed policy revisions. Our primary concern relates to the provisions allowing school administrators to search students’ telecommunication devices without the permission of students or their parents. We recognize that schools are able to search students’ backpacks or lockers without permission, if they have reasonable suspicion that materials inside violate school rules. But we believe that telecommunications devices are different. Unlike backpacks or lockers, telecommunication devices store a virtually limitless amount of highly personal information dating back months or years. This information includes a log of every call the student has made and received, along with whom they called, the content of every text message the student has sent or received, and frequently dozens of personal photographs. Smart phones, which most students will likely have within a few years, contain even more highly personal information, including emails, personal documents, and a record (in a browser cache) of what websites a student has visited. In short, students carry a record of their personal lives on their phones. By searching a phone, administrators could determine a student’s political views,

whether a student is having relationship problems, whether their parents might be considering a divorce, whether the student has personal health issues or is pregnant, and whether the student likes sports, World of Warcraft, or shopping for lingerie. This is vastly more information than can be found during a traditional backpack or locker search. In addition, in the case of backpacks and lockers a student has a clear choice to bring to school only what he needs for the day. Textbooks and school supplies go to school, whereas personal items like diaries stay home. With a cellular or smart phone, the choice is not so easy. Unless students take active steps to delete most things on their phones, everything comes to school in the phone, whether it is private or not. For these reasons, searching telecommunication devices impinges on student privacy significantly more than a traditional backpack or locker search. By allowing searches of cell phones, the proposed revisions may open the school district and its administrators to civil and criminal liability. Both in Washington and elsewhere, school administrators have faced civil lawsuits after viewing images as part of sexting investigations. After school administrators in Bothell received a copy of a nude image of students and launched an investigation, one of the students’ parents sued the school district. The parents claimed that the administrators knowingly viewed child pornography and, in the course of their investigation, shared that material with other adults. The parents state that these actions violated their daughter’s privacy, and are seeking damages from the school district.1 Similar cases have occurred around the country. A Pennsylvania student recently sued her school after a school administrator confiscated her phone and searched it. The student had violated school rules by making a phone call during school hours. During the search, the administrator found sexually explicit photographs and suspended the student. The student alleges that the administrator violated her constitutional rights.2 In another incident in Virginia, a school administrator downloaded a sexually explicit photograph from a student’s cell phone in order to launch a sexting investigation. The investigation got nowhere, but Loudoun County prosecutors charged the administrator with possession of child pornography.3 In all these cases, viewing the illegal images created more problems rather than resolving the issue through other means. Further, allowing school administrators to look through students’ phones is, by itself, unlikely to reduce the frequency of sexting among students. Most students who sext are not thinking about the potential consequences of their actions. If the potential for dissemination of the images, embarrassment and humiliation, and the risk of criminal prosecution does not deter them from sexting, then they will likely also not be thinking about the risk of having their phone searched at school. To reduce sexting, the school district should instead educate students about the potential dangers and consequences of the activity.

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First Amended Complaint, Nielsen v. Northshore Sch. Dist., No. C08-1704 JLR (W.D. Wash. Nov. 25, 2008). 2 Complaint, N.N. v. Tunkhannock Area Sch. Dist., No. 3:10-cv-01080-ARC (M.D. Pa. May 20, 2010). 3 See Ting-Yi Oei, My Students. My Cellphone. My Ordeal, WASH. POST, Apr. 19, 2009.

The district can deter sexting at school by banning students from sending, sharing, or viewing sexually explicit material while at school. The proposed revisions include such a ban. We believe, however, that “sexually explicit material” should be specifically defined so that both students and administrators have reasonable notice about what is banned and what is not. We also believe that the policy should not ban mere possession of such material, since such a ban would be nearly impossible to enforce given that a student’s telecommunication device could contain such content without the student’s knowledge or consent. What matters is whether a student is viewing, sending, or sharing the material at school, not whether such material is inadvertently on a device as a result of a third party’s message or a student’s web browsing while away from school. As currently written, the school district's policy states that school administrators will forward content believed to be in violation of criminal laws to law enforcement. To protect student privacy and to reduce the risk of civil or criminal liability for the district, we believe a more effective policy would be that school officials may seize devices that they reasonably suspect to contain illegal content and, without attempting to search the device, the school may offer to turn the devices over to law enforcement. Law enforcement officials must then proceed to obtain a warrant to search the device where there is probable cause to do so. We have included some suggested revisions to Oak Harbor’s proposed policy consistent with the above comments. We believe that these suggested revisions would be effective in dealing with sexting and other issues raised by student cell phone use while also addressing our concerns. We look forward to working with you and the School Board to develop a policy that addresses the problems posed by modern telecommunication technology while also protecting student privacy rights. Sincerely,

Brian J. Alseth Technology and Liberty Project Director

Policy No. 3245 Students

Students and Telecommunication Devices
While on school property, or while attending school-sponsored or school-related activities, or while on school buses or other vehicles provided by the district, students shall not use personal telecommunication devices, including, but not limited to pagers, beepers and cellular phones in a manner that poses a threat to academic integrity, disrupts the learning environment, or violates the privacy rights of others. Students in possession of personal telecommunication devices shall observe the following conditions while on school property, or while attending school-sponsored or school-related activities, or while on school buses or other vehicles provided by the district,: A. Student personal telecommunication devices shall not be turned on and/or operated during the regular school day except during the student’s lunch break, unless an emergency situation exists that involves imminent physical danger or a school official authorizes the student to do otherwise. B. Students shall not create, send, share, or view images or video content on personal telecommunication devices that the student or students know to depict nudity, the unclothed pubic area, unclothed female breasts, masturbation, or any type of sexual intercourse, including oral or anal sex. C. When school officials have reasonable suspicion that a student is currently in possession or control of a personal telecommunication device that has been used to create, send, share, or view content in violation of this policy, or that the personal telecommunication device has been used in a manner that poses a threat to academic integrity, disrupts the learning environment, or violates the privacy rights of others, the official may confiscate the device, which shall be returned to the student or to the student’s parent or legal guardian. D. School officials may not search any personal telecommunication device without the express authorized consent of the student or the student’s parent or legal guardian. E. Where school officials have reasonable suspicion that a student is currently in possession or control of a personal telecommunication device that contains content that violates criminal laws, or that the personal telecommunication device has been used in a manner that violates criminal laws, the school may notify appropriate law enforcement authorities, and the school must surrender the device to appropriate law enforcement authorities upon the showing of a valid warrant. F. Students who violate this policy will be subject to disciplinary action, including suspension or expulsion, and may lose the privilege of bringing any personal telecommunication devices onto school property. G. Students are responsible for personal telecommunication devices they bring to school. The district shall not be responsible for loss, theft or destruction of any personal telecommunication device brought onto school property. H. Students shall comply with any additional rules developed by the school concerning the appropriate use of personal telecommunication devices.

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