Expelled student sues over "unreasonable" cell phone search By Jacqui Cheng | Published 2 years ago Even middle

schoolers are protected from unreasonable search and seizure when it comes to the contents of their cell phones, according to the American Civil Liberties Union. The organization has filed a lawsuit on behalf of a Mississippi middle-school honor student, alleging that a 2008 cell phone search and the sixth-grader's subsequent expulsion were not only unnecessary, but also unconstitutional. Southaven Middle School in Southaven, Mississippi has a policy against cell phone use during school hours, as many schools do nowadays. In August of 2008, 12-year-old Richard Wade was discovered to be in violation of that policy after he received a text message from his father (who was traveling out of state) during "football class." That's when his cell phone was confiscated by his football coaches and then searched by the principal, as well as the Southaven Police Department. At that time, authorities found what they considered to be extremely scandalous, "gang-related activity"that is, photos of Wade and a friend dancing in the bathroom at Wade's home. The friend held a BB gun across his chest while he danced. Wade was suspended and then eventually expelled for having "gang signs" stored on his phone. That's when the ACLU got involvedthe organization says that the football coaches, principal, and police violated Wade's constitutional rights and even acted outside of the school's policy of merely confiscating phones during school hours. In its complaint, the ACLU quotes directly from the school district's policy book that says students using cell phones in class will "have them taken by the teacher and turned into the office" for pickup by parents after school. The book also has a policy saying that the first violation could result in a one- to three-day suspension as the maximum punishment (Wade's SMS incident was his first offense). The ACLU says that authorities had no reason to suspect Wade of being a danger to the school and that they not only overextended their authority by searching the cell phone, school officials also overreacted by expelling Wade. "As a result of this incident, R.W. has suffered and continues to suffer ongoing harm, including, but not limited to, missed school, a permanent negative report on his school record, and emotional distress," reads the complaint. The school has defended its decision by claiming officials reserve the right to look through confiscated phones to see if students were cheating on tests or conducting illegal activities, according to the Memphis Commercial Appeal. However, this doesn't appear to be stated in the district's handbook, making it seem more like an unofficial policy. The ACLU, of course, insists that students retain the right to be free from unreasonable search and seizure, even after walking through schoolhouse doors. "The entire incident was a gross violation of Richard's constitutional rights, including his right to freedom of speech. Like most of us, Richard carries personal and private data on his cell phone, including photos that are for his own viewing," ACLU staff attorney Kristy Bennett said. There have been numerous lawsuits in recent years over students' rights, and the number appears to be on the rise thanks to the proliferation of cell phones and the ubiquity of the Internet. Even activities that appear to have taken place off of school grounds, such as questionable blog postings made from home, have become a subject of debate. The ACLU has argued in the past that schools cannot restrict a student's speech "anywhere it is uttered" simply because it's vulgar and targets school officials, though the courts have not always

ACLU Lawsuit Says Student's Cell Phone Was Illegally Searched

By John Cox, NetworkWorld Sep 3, 2009 8:41 am A middle school honor student who was expelled after authorities searched his cell phone and found evidence of what they claimed were "gang-related activities" now has a lawyer: the American Civil Liberties Union. The Mississippi ACLU this week filed a federal civil rights lawsuit, arguing that the 2008 cell phone search was illegal and the expulsion wrongful. The lawsuit claims that the gang activities were simply photos showing the student, then-12-year-old Richard Wade, dancing in the bathroom of his own home, and a friend, also at Wade's home, with a BB gun held across his chest. According to the ACLU press release, Wade, then a 12-year-old at Southaven Middle School, Southhaven, Miss., had his phone confiscated and then searched by his football coaches, the class principal, and a police sergeant after he read a text message received from his father during football class. The school bans cell phone use by students, and lets teachers and coaches take the phone away and turn it into the main office, where parents can pick it up after paying a fine, according to the DeSoto Times-Tribune. But a statement by school authorities cast the policy in a somewhat different light, according to a story in the Memphis Commercial Appeal: "School system officials earlier cited the district's policy on the use of cell phones during school hours and said 'students know that if they break the rules, their cell phone will be confiscated and that school officials reserve the right to look through the cell phone to see if they were cheating on a test or conducting illegal activities related to gangs or drugs.'" The ACLU argues that the search of the phone and the subsequent expulsion of Wade violated his constitutional rights. Students still have a right to freedom from unreasonable search and seizure, and to due process, when in school, the group says. There was "no basis" for authorities to search Wade's phone after seizing it, and "nothing to substantiate" the accusation of gang-related activity. Those actions were a "gross violation" of Wade's constitutional rights, including his freedom of speech, the group argues. Based on the search and their conclusions, officials suspended Wade for three days and ordered him to attend a disciplinary hearing, after which he was expelled. He enrolled at Oakhaven Middle School in nearby Memphis, Tenn., a school "plagued by serious gang problems and which posed a constant threat of harm" to Wade, according to the ACLU statement. The family eventually moved to Georgia, where he's currently enrolled. The suit seeks unspecified damages as well has having the charges against Wade deleted from school and police records. Mobile phones as sources of information for police and prosecutors have been creating a rising tide of case law and legal reasoning, much around Fourth Amendment protections against unreasonable searches and seizures. The May issue of Police Chief Magazine had a brief summary of a half dozen relevant rulings in just the first months of 2009, concluding "The case law regarding the searching of cell phones incident to arrest is growing by the day, and not always consistently. The authority to search a cell phone incident to arrest currently depends on location, so close consultation with a legal adviser is necessary." Orin Kerr, who writes at The Volokh Conspiracy legal blog, took note in late 2008 of a district court decision (United States v. Fierros-Alavarez) that ruled a defendant has no privacy rights regarding the phone numbers listed in his cell phone. Kerr argued the decision was wrong: "The police shouldn't be allowed to go through your private stuff so long as they only look for and take information that is in some sense 'non-private.'... The same goes for the numbers dialed stored in the cell phone in Fierros-Alavarez.

"Sure, if the police had installed a pen register in the phone and collected the information at the phone company, then collecting the number dialed wouldn't have triggered the Fourth Amendment. But the police didn't do that. And the police can't go hunting through private things like cell phones on the theory that they're only looking for information that they could have collected constitutionally if they had only thought of it at the time. Numbers dialed that are stored in a cell phone are normally protected by the Fourth Amendment as much as anything else stored in a cell phone...." Kerr is the author of a 2005 Harvard Law Review article, "Searches and Seizures in a Digital World," which lays out a framework for applying the Fourth Amendment to hard drives and other storage device. The same issues are cropping up elsewhere. In 2007, an Israeli court ruling put restrictions on what information police and prosecutors could obtain from a defendant's cell phone without a warrant. Defense attorneys in that case argued that cell phones were in effect computers, and therefore should have the same protections applied to them as Israeli law then granted to PCs or laptops.

hould Principals Be Allowed to Review Students Cell Phone Records?

by Andy Carvin, 4:49PM A Boston-area school district is asserting the right to search students cell phones for inappopriate information. Does this policy, one of the first of its kind in the US, cross the line? According to todays Metro West Daily News, principals in the town of Framingham, Massachusetts have been given the go-ahead to examine students cell phones and review all of their contents while searching for contraband. Quoting from the article: High school administrators under a new policy are claiming the right to snatch information stored in students cell phones when they search for drugs or stolen property at school. The change clarifies the schools search and seizure policy, adding cell phones to the list of places school officials can snoop if they suspect a student has contraband. Federal law says school officials need only reasonable suspicion of the presence of drugs or stolen goods to conduct searches. We reserve the right to look through the cell phone, Principal Michael Welch said. It would be no different than if a student were to have a notebook. Weve had instances of graffiti. Weve looked through a notebook and found identical instances of graffiti. I find it troubling, ACLU attorney John Reinstein said in the article. Theyre essentially going on a fishing expedition. Its not based on a reasonable expectation that the student has anything unlawful on a cell phone. Its simply they want to look there. Theyre behaving more like police than school officials. Of course, todays cell phones can contain an enormous amount of personal data. Even the most rudimentary of phones will include logs of all incoming and outgoing calls, as well as contact information for friends and family. Beyond that, you could also expect to find the students collection of cameraphone photos and video clips, logs of websites visited, stored logins and passwords of websites visited, instant messaging records, SMS text logs, mp3 files, ringtones and emails. For me, its the email part of it thats most disturbing. Theres a decent chance that an email account on a students phone would be connected with their familys email account. Insisting on the right to search these email accounts would be tantamount to the principal showing up at their house and ordering their parents to hand over the family PC for inspection.

What do you think of this situation? School officials have long possessed the right to search a students belongings, but does this type of investigatory datamining go too far? Should a principal be able to examine a students private email and phone records merely through reasonable suspicion that something has run afoul? -and

ACLU Applauds Boulder Valley School District's Decision To Limit Searches Of Students' Cell Phone Text Messages

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April 21, 2008 FOR IMMEDIATE RELEASE CONTACT: Mark Silverstein, ACLU Legal Director, 303-777-5482 ext 114 A spokesperson for the ACLU of Colorado announced today that it welcomes a decision of the Boulder Valley School District ("BVSD") to limit searches of students' cell phone text messages, an issue the ACLU raised in a letter made public in October, 2007. In that letter, the ACLU asserted that non-consensual searches of text messages violate a Colorado criminal statute designed to protect the privacy of telephone and electronic communications. New guidelines state that before searching text messages, BVSD administrators must not only satisfy the minimum federal constitutional standard for conducting a search, but must also obtain the consent of the student or parent. The only exception is an emergency in which there is an imminent threat to public safety. "I commend the Boulder Valley School District for making a decision that protects students' privacy and addresses the concerns raised in the ACLU's letter," said Mark Silverstein, ACLU Legal Director. "Meetings with the school district's attorneys and ACLU representatives have been cordial and very productive." The Colorado statute makes it a crime to read, copy, or record a telephone or electronic communication without the consent of the sender or receiver. The ACLU's October letter asserted that administrators at Monarch High School in Louisville had been violating the statute by seizing students cell phones; reading the text messages; transcribing messages administrators regarded as incriminating; and placing some transcriptions in students' permanent files. Silverstein noted that the BVSD attorneys do not agree that the Colorado statute applies to the cell phone searches criticized in the ACLU's letter. Nevertheless, he said, by ensuring that administrators will now obtain consent before conducting a search, the potential conflict with the statute is largely resolved.

Silverstein said that BVSD also will add a sentence to its "Student Rights and Responsibilities Guide" that says: "Except in cases of emergency, a cell phone or other electronic communication device will not be searched without the consent of either the student or parent." In addition, administrators will fill out a one-page pre-printed checklist when a cell phone is searched. "The checklist functions as a written reminder to administrators of the minimum standards that must be met before searching a student's cell phone," Silverstein said. "It also reminds administrators that they can consult with the BVSD's legal counsel in close cases." "Students' use of newer electronic devices pose a potential challenge for school administrators who must enforce school rules and ensure students' safety while also respecting their right of privacy," Silverstein said. "The new guidelines BVSD has adopted represent a substantial step toward reaching an appropriate balance. I have nothing but praise for BVSD's willingness to discuss the ACLU's concerns and to make these changes." In addition to Silverstein, ACLU attorneys who met with BVSD attorneys included Taylor Pendergrass, ACLU Staff Attorney, and ACLU Cooperating attorney Michael Rollin.

ACLU Settles Student-Cell-Phone-Search Lawsuit With Northeast Pennsylvania School District

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September 15, 2010 ACLU and PA School Board Association Working On Guidelines For School Administrators On Searching Students' Cell Phones FOR IMMEDIATE RELEASE CONTACT: media@aclu.org PHILADELPHIA The American Civil Liberties Union of Pennsylvania announced today that it has settled a lawsuit filed in May alleging that the Tunkhannock Area School District (Wyoming County) illegally searched a student's cell phone, punished her for storing semi-nude pictures of herself on the device, and then referred her case for criminal prosecution to the district attorney's office. Under the settlement, the school district denied any liability or wrongdoing but agreed to pay the student and her lawyers $33,000 to resolve the dispute. The student's claims against the District Attorney's Office were not settled and will proceed through litigation.

The student, identified only as N.N. in court papers to protect her privacy, was pleased that this part of the case had settled: "I hope this settlement will lead school officials in the future to consider whether they have valid grounds to search students' private text messages, emails and photos." N.N.'s lawyer, Witold Walczak, the ACLU of PA's Legal Director, also praised the settlement: "We're pleased that the school district resolved the dispute quickly and amicably, but much work remains to educate school officials across the country about the importance of respecting students' significant privacy interests in the contents of their cell phones." The case began in January 2009 when a teacher confiscated the cell phone of N.N., a 17-year-old senior, for using the phone after homeroom began, a violation of school policy. Later that morning, the principal informed N.N. that he had found "explicit" photos stored on her cell phone, which he turned over to law enforcement. He then gave her a three day out-of-school suspension, which she served. The photographs, which were not visible on the screen and required multiple steps to locate, were taken on the device's built-in camera and were never circulated to other students in the school. N.N. appeared fully covered in most of the photographs, although several showed her naked breasts and one indistinct image showed her standing upright while fully naked. The photographs were intended to be seen only by N.N.'s long-time boyfriend and herself. The ACLU-PA hoped to use this case to help alert school officials across Pennsylvania to students' privacy rights in their cell phones. Very little case law exists discussing student-cell-phone searches. While the settlement forecloses a court ruling, the case has led the ACLU-PA to contact the Pennsylvania School Boards Association (PSBA), which this week agreed to work with the ACLU towards crafting guidelines for teachers and school officials to help them better handle situations involving student cell phones and other electronic devices without unlawfully invading student privacy. Walczak noted that the goal was to prevent future violations of students' constitutional rights. The lawsuit, filed in the U.S. District Court for the Middle District of Pennsylvania, will continue against former DA George Skumanick, who threatened to prosecute N.N.; Police Detective David Ide, who investigated and viewed the images; and Jeff Mitchell, the current Wyoming County District Attorney. N.N. is represented by Walczak and Valerie Burch from the ACLU of Pennsylvania. The case is N.N. v. Tunkhannock Area School District et al., 10-cv-01080-ARC. More information about the case, including a copy of the complaint, can be found here: aclupa.org/legal/legaldocket/nnvtunkhannockareaschooldi.htm