It’s happening at schools across the country: A student is caught misusing a cellphone on campus, and administrators seize the phone and look at everything inside of it.
It happened last week at an upstate New York high school, where a 14-year-old boy and his girlfriend are now under criminal investigation after a school principal discovered “inappropriate” photos of the girl while searching the boy’s cellphone.
Is this legal? Are there limits to how deeply a school can intrude into a student’s electronic notes, messages and photos?
Despite what many school and law-enforcement officials may insist, the Fourth Amendment very much exists on school grounds. The Supreme Court reaffirmed as recently as 2009 that it’s possible for a school search to go too far, if a search is highly intrusive and is unsupported by reasonable grounds for suspicion.
(Commenting on the recent New York case, Albany County Sheriff Craig Apple likened the search of a student’s cellphone to the search of a locker. But there’s no comparison. The locker belongs to the school, and a student accepts its use knowing that he has no ownership in it. A school’s ability to search its own lockers is in no way analogous to reading the contents of a teenager’s phone — which, incidentally, probably is owned by the parent and may contain private material belonging to the parent.)
In this guide, the SPLC’s Laura Napoli explains how courts are struggling — outside of school as well as within it — to set boundaries for when the Constitution permits authorities to inspect the information recorded on a cellphone.
The touchstone of Fourth Amendment rights is the “reasonable expectation of privacy.” If there is no reasonable expectation of privacy, then a search cannot violate the Constitution. For instance, it is not an unlawful “search” for the police to look at the exterior of your car to match the damage to a hit-and-run accident.
One factor will be whether possession of the phone is permitted at all. If the phone is “contraband” so that it should never have been brought into the school in the first place, then the expectation of privacy is diminished.
However, if it’s permissible to have the phone, then the authority to search it should be constitutionally limited, just as the authority to search a student’s backpack or purse is limited.
With journalists increasingly relying on their phones to shoot video, record audio and even file stories, the ability of a school to confiscate and search phones is on collision course with journalists’ ability to keep information confidential. Student journalists should get familiar with their states’ reporter shield laws and, if their phones are taken away, be prepared to intelligently assert the reporter’s privilege to keep prying eyes away from notes and interviews that are none of the school’s business.