Improper behavior

[Cole Parker]

http://www.pottstownmercury.com/articles/2...3c646273840.txt

There is a brouhaha about a high school in Pennsylvania issuing laptops to students, then using a camera feature that can be remotely operated to spy on the students at home. One vice-principal told a boy that he'd been observed engaging in "inappropriate behavior."

Gee, I wonder what inappropriate behavior a teenage boy in his own room at home might be engaged in? But then, it probably isn't that, because in the 21st century everyone knows that teenage boys masturbate, and that it isn't inappropriate--it's universal.

My questions are, why in the world would this vice-principal be concerned with this, and if he was watching, wasn't he the one who was engaged in inappropriate behavior?

C

[Trab]

Shocking. Who would have ever suspected school officials of doing inappropriate things? The sad thing is, this isn't a 'oops' type of thing, it was thought out and implemented as a policy. This is far deeper and more sinister than just the vice principal.

[DesDownunder]

For more on this topic please see Brody's post

[vwl]

This may be more than you want to read about it, but...

Categories: Uncategorized 39 Comments A Few Thoughts on Robbins v. Lower Merion School District

Orin Kerr ? February 18, 2010 10:12 pm

Eugene links to the complaint in the school-provided-laptop-with-cameras case, and I wanted to offer a few thoughts on it from a legal standpoint. I?ll assume the school?s statement as to what happened is accurate, and the computer?s camera was turned on and a still photo was taken only when the school believed the laptop had been stolen or was missing. (To be clear, I?m not sure that statements is true, but I need to assume something to get a sense of how the law applies: That seems a reasonable starting point.)

My tentative bottom line: The schools violated the Fourth Amendment rights of students when they actually turned the cameras on when the computers were at home. On the other hand, the schools did not violate the federal statutory surveillance laws.

1. The federal Wiretap Act cause of action doesn?t work. The computers allegedly took still images of the student, but the Wiretap Act doesn?t apply to video images. The Wiretap Act applies to bugging audio equipment (?oral communications?), intercepting phone calls (?wire communications?) and intercepting computer communications (?electronic communications.?). But the alleged interception here is of a video image without sound, and the Wiretap Act doesn?t apply. See, e.g., United States v. Koyomejian, 970 F.2d 536, 539 (9th Cir.1992); United States v. Torres, 751 F.2d 875, 880 (7th Cir.1984).

2. As far as I can tell, the Pennsylvania wiretap statute is identical (as relevant here) to the federal Wiretap Act. If I?m right about that, the Pennsylvania wiretap act cause of action doesn?t work either.

3. The Stored Communications Act cause of action is frivolous. Individual laptops are not electronic communication service providers under ECPA.

4. The Computer Fraud and Abuse Act claim doesn?t work, either, even if you can get past the unauthorized access issues, because the civil cause of action under 18 U.S.C. 1030(g) requires you to show loss aggregating at least $5,000. Loss is a defined term under 1030(e)(11) which refers to reasonable economic costs suffered by the intrusion. Also, you can?t aggregate losses for other related intrusions of other students, if there were any, because this isn?t a case brought by the United States Government. See 1030©(4)(A)(i)(I). I don?t see how the plaintiff here suffered $5,000 in economic loss. The complaint makes no mention of any such losses.

5. The Fourth Amendment issues here are interesting. I can?t speak to the Pennsylvania common law cause of action, but at least among the other causes of action, this strikes me as the most serious. Let me break down the issues in two steps:

a) This case is brought as a class action, but the Fourth Amendment issues here don?t work as a class action. Any ?search? here didn?t occur until the camera was turned on, which according to the school occurred when the laptop was thought to be lost or stolen. That means no search occurred under the Fourth Amendment for students who had laptops that were not turned on. See United States v. Karo, 468 U.S. 705 (1984) (?The mere transfer to Karo of a can containing an unmonitored beeper infringed no privacy interest. It conveyed no information that Karo wished to keep private, for it conveyed no information at all. To be sure, it created a potential for an invasion of privacy, but we have never held that potential, as opposed to actual, invasions of privacy constitute searches for purposes of the Fourth Amendment. . . . It is the exploitation of technological advances that implicates the Fourth Amendment, not their mere existence.?).

b) Taking the photograph inside the home seems pretty clearly to be a search under Karo. The school might try to justify this under the special needs exception: The school issued the laptop and could search it to investigate misconduct under New Jersey v. TLO. The problem with this argument is that the school didn?t search the laptops: They searched the home where the laptop happen to be present.

Is there some other reasonableness framework that can apply in that situation to justify the search of taking the photograph? None come to mind: I would think the government would have to use the probable cause of the computer being taken to get a warrant to justify turning on the camera. So unless I?m just missing something, this was a Fourth Amendment violation for taking the still image of the home without obtaining a warrant.

6. As I said, I?m not sure about the Pennsylvania common law tort claim. I?ll leave that one to the tort lawyers.

[Tragic Rabbit]

As a former teacher, just FYI, I'd say none of the above applies.

USA school related suits have settled almost universally along the following lines - anything that is property of, bought by, lent by, etc, a school/district is property of that district in word, deed and act 24/7 and the principal can lose his job for what the boy did.

Nothing sinister really, this isn't like the peeping camera cases of last decade because it involves (a) minors, special cases under law, and all high school students are minors in most legal senses regardless of age unless they are legally married or emancipated (b) school (principal, teacher, bus driver, etc) as in-loco-parentis, which places much burden on same, I assure you from experience and ? sexual misconduct within school setting, school setting and property is not divisible, where the boy did what he did is immaterial and same as if he did it in the classroom (seen that too, btw, in my years).

Sorry to say it as I don't generally like principals - on principle - but he was only doing his job.

He is answerable to: parents, school board, superintendent or whathaveyou, his own teachers, local community however defined locally including newspapers who love this sort of 'sex scandal' story, other students (eg students can sue their own schools), manufacturer of hardware software or any product purchased for school use by state or localities....the list goes on forever.

Examples of cases I've followed that come to mind are emails or phone calls sent via school laptops cells etc (not private nor owned by sender, whether teacher or admin or not), stored materials on same (teacher fired and defrocked for photo on laptop bought from school, etc)....ad nauseum. It's not a gay thing or a sex thing or a privacy thing, public school = no personal privacy applies is pretty much the idea...and the law.

A teacher's tuppence. Joey

PS Thanks, vwl, I found 5a esp fascinating. On PA Commonwealth law, they are IMO pretty decent compared to much of the US. I have taught there but found no major differences from parts south, etc, in attitude. Might note that PA is essentially rural and old fashioned conservative, sort of libertarian Jeffersonian or whathaveyou, aside from the two cities (god I hate Pittsburgh but love Philadelphia).

[Tragic Rabbit]

6. As I said, I'm not sure about the Pennsylvania common law tort claim. I'll leave that one to the tort lawyers.

Tort lawyers are allowed to join but aren't liable to post.

[TalonRider]

From what I heard on the news about this, the student called in about the inappropriate behavior was observed smoking pot.

A Cheerleader was also interviewed and she liked to listen to music while she showered at home. Imagine here surprise when she noticed the green light was on.

[Trab]

TR, unless I'm much mistaken, you are saying that this is virtually identical to those people who take their work computers/laptops home, then do things with them there. Nothing they do on them is private, and all belongs to the employer. If this is the situation, it seems simple enough to just have everyone read, then sign, an acknowledgement of this reality before accepting delivery of the laptops.

I don't know about others, but it is not the lack of privacy that distresses me about this story as much as the seeming lack of knowledge about the lack of privacy.

[Cole Parker]

I'm wondering why there doesn't seem to be much fuss, so far at least, over the disconnect between the school saying the cameras are never turned on except for locating stolen computers, and the fact the vice-principal saw something on a computer that wasn't stolen. I assume this man, and anyone else who activated the cameras, will be fired.

And I don't know why he'd discipline a kid for smoking pot in his own bedroom. I agree, that's different from disciplining him for masturbating, but it's still something that makes little sense for him to do, especially when he has to admit he was peeking in order to do it.

C

[Trab]

Just try even proving it was marijuana.

[Cole Parker]

Ah, the old "it's only oregano" ploy!

C

[Tragic Rabbit]

TR, unless I'm much mistaken, you are saying that this is virtually identical to those people who take their work computers/laptops home, then do things with them there. Nothing they do on them is private, and all belongs to the employer. If this is the situation, it seems simple enough to just have everyone read, then sign, an acknowledgement of this reality before accepting delivery of the laptops.

I don't know about others, but it is not the lack of privacy that distresses me about this story as much as the seeming lack of knowledge about the lack of privacy.

Trust me, they know. There is no need to state it, sign anything, it's just the way it is, and no, I wouldn't compare it to the adult employer thing because to me this is very specific, public schools (private, too, just different setup), presence of minors, the parental responsibilities of schools and all the bazillion people/orgs that hold them to account for it. Plus newspapers eager to print pretty much anything, fact or fiction.

Anyhow, school discipline is a school matter and not up for outside debate or recourse, same with firings. Legal charges alongside are a different matter, but courts aren't going to look lightly on illegal activity captured on public school property. Sounds like multiple charges to me, major infractions in and outside the school, and I still think the principal was doing what he's expected to do...not that I approve particularly. As a parent, maybe I do...either way, it's just how it is, the whole public school thing is a special matter.

For example, you (unless a student or employee there) can't just walk onto a state's school property, it's illegal, may only require a call ahead or visit to the office first but the police WILL haul off anyone on school property if a teacher or admin asks them to...and charge them with a special kind of trespass, pretty serious as I recall. Anything belonging to the school - connected - can be searched, seized, impounded, flown to the moon...it's not like the grownup world. Most public high schools have police attached or permanently stationed at and around them these days and any legal infraction is worse on or with or near school property - guns, drugs, sex, violence, vandalism...anything. I've had to call the cops myself more than once but usually admin does or a school district security officer, also standard at schools these days.

I'm just relating what a teacher knows, I'm not passing judgment and don't care who smokes dope...but only a dope would do it on his classroom laptop. One objection easily raised by a community would be that the laptops are not worth their tax dollars...given all this bad pub and whatnot. Hard enough to get anything funded as it is.

[Cole Parker]

That part, the funding they get, amazes me, too. They have enough money in that district to buy 2,500 laptops, one for each kid in school. In the school district I'm volunteering in right now, they don't have enough money to buy paper for the teachers. Each teacher is now restricted to one ream of paper for the remainder of the school year. This means, practically, teachers cannot run off homework assignments for the thirty-five kids in their classes every night. The teachers have taken to writing to the parents and asking each parent to send one ream of paper in with their kid. Of course, the school district disapproves of the teachers doing this.

Buying laptops for each one seems otherworldly, to me.

C

[JamesSavik]

Peeping into the bedrooms of teenagers sounds more like the actions of a sex offender than a school official... or perhaps a school official who should be a sex offender.

I'm wondering if any candid photos of the students are going to show up.

[Cole Parker]

The school and school board seem deeply in denial right now.

Soon they'll realize they're deeply in da soup.

C

[Tanuki Racoon]

I understand what the board did and I support the fact they CAN do it. However their implementation was faulty.

Keep in mind all iPhone users (who set their phone up) as well as many MacBook users can track their devices if stolen. My Macbook, if I mark it stolen on a particular internet site, will take a picture of whomever is using it next time it's operated and email that and the IP address to me.

So since it's school property they are loaning, their actions are okay BUT they failed to advise students that IF the laptop was reported stolen (or lost) there were automatic consequences.

What will come out, sadly, is that some of those instances were not the result of reported lost or stolen machines. Then the admins should be taken out back and shot. That's way over the creepy line.

This post is disjointed because I am tired. Sorry if it confuses.

[DesDownunder]

Your post and its point are most clear oh Raccoonous one.

[The Pecman]

I'm not a lawyer, but my partner has a law degree, and 20-odd years (very odd) of living with him convinces me that I know just a vague bit about the law.

I think the problem here is that if the school owns the computers, unfortunately, they can do anything they want to with them. Having said that, I would make it a policy that they have to shut the cameras off.

But it's been proven time and time again in court that if, say, an employee does naughty things on a company-owned computer, the company can discipline or even fire the employee. I think a similar principle applies: whoever owns the computer determines how it can be used.

If the kids don't want to be spied on, they gotta buy their own laptops. And parents and schools can just teach the kids how to turn the damn cameras off. Hell, cover it with a piece of opaque tape... problem solved.

Update: good tech coverage of this incident at this link on Engadget. This may kinda prove to be much ado about nothing; the school system is claiming they never spied on anybody, and it was only intended to be a way of keeping track of laptops that have gone missing. (They... "say.")

[Guest Fritz]

Pecman wrote

But it's been proven time and time again in court that if, say, an employee does naughty things on a company-owned computer, the company can discipline or even fire the employee. I think a similar principle applies: whoever owns the computer determines how it can be used.

I think this is something different from doing a naughty or illegal act on a computer a company furnished you. In the first place it is the government doing it and not private industry. Private industry may be able to do things--as a condition of employment--which are forbidden to government. This was spying on someone. Not only that, spying without a search warrant.

The fourth amendment says, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

I've read several articles on this incident and the school district's explanation for having the ability to turn the camera on was that in the event the computer was lost or stolen it could be tracked. In none of the articles does the district try to make the case that they had reason to believe the computer was lost or stolen. So the school district had no reason to be using the camera according to their stated reasons for having the feature. That makes the incident look very much like spying to me and some of the students may even be able to make a case for voyeurism depending upon where they normally keep the computer when they have it at home. End answer, I think that school district is in a world of hurt unless the kids' parents can be bought off cheaply or unless there is some sort of release the parents signed giving the school the right to monitor the students off campus.

[Drewbie]

Peeping into the bedrooms of teenagers sounds more like the actions of a sex offender than a school official... or perhaps a school official who should be a sex offender.

I'm wondering if any candid photos of the students are going to show up.

I can see that, Personally if I was a student I would put a sticky note over the camera.

[colinian]

I can see that, Personally if I was a student I would put a sticky note over the camera.

And then play a recording of the sounds of a sex orgy. That would excite the guy at the receiving end of what the camera wasn't seeing, wouldn't it?

Colin

[DesDownunder]

And then play a recording of the sounds of a sex orgy. That would excite the guy at the receiving end of what the camera wasn't seeing, wouldn't it?

Colin

YES!

I love that idea.

[JamesSavik]

Better yet: set up the laptop in front of a flat screen TV so that it can't anything else.

Play the raunchiest kinky porn you can find from Tijuana (w/wo donkey, your choice).

Go to school looking very smug.

[Trab]

It would be better to have the laptop continually pointed at and sending out a preacher expounding on the sins of lust and deceit, telling of falsehoods, etc. Or best yet, a view of the vice principal's house, obviously taken with a long distance lens, with cross hairs.

[E.J.]

Story update HERE