Federal appeals court dials up an important win for students’ cellphone privacy

A high school student is caught sending a text message during class, in violation of school rules. The teacher confiscates his phone. Can she (or the principal or school police officer) read the messages inside?

Not without some reasonable suspicion that the messages themselves contain evidence of prohibited activity, says a federal appeals court.

The Fourth Amendment protects all citizens against unreasonable searches by government officials. This constitutional guarantee even protects minors and even applies to searches by non-police school employees (as the Supreme Court reminded us in a 2009 ruling in favor of an Arizona student unlawfully strip-searched for a nonprescription pain killer).

Whether in school or on the highway, judges have been struggling to decide — with inconsistent results — when the contents of a cellphone are fair game for prying government eyes.

The issue is arising with increasing frequency because just about everyone the police stop or arrest is carrying a cellphone, and traditional search-and-seizure principles — developed in the context of suitcases, purses and other physical spaces — are not a fully comfortable fit for a search of “informational property.” It is well-accepted that, after making an arrest and confiscating a briefcase, the police can open the bag to make sure it contains no weapons or drugs (or that they are not accused of stealing the suspect’s valuables). But those justifications seem strained when the “space” being searched is the memory card of a phone.

The latest and most authoritative word came March 28 from a three-judge panel of the Nashville-based Sixth Circuit U.S. Court of Appeals.

In the case of G.C. v. Owensboro Public Schools, the court ruled 2-1 that a student whose cellphone was seized for violating a no-texting-in-class ban had a viable Fourth Amendment claim against the school, because the teacher who took the phone read four of the students’ text messages without lawful justification:

 [U]sing a cell phone on school grounds does not automatically trigger an essentially unlimited right enabling a school official to search any content stored on the phone that is not related either substantively or temporally to the infraction.

In this situation, the offense of which the student was accused was “texting during class.” What he was writing — it could have been “happy b-day, mom” — was immaterial to the infraction. The school had no need to see what was in the messages to pronounce him guilty of the violation.

(Make no mistake, it still is easier for schools to peek into their students’ private spaces than for government officials in the “real world.” Outside of school, a search must be justified by “probable cause” that the search will yield evidence of a crime. Within school, the government must only prove “reasonable suspicion” that the place being searched contains evidence of a violation, either of the law or of school regulations.)

The Sixth Circuit’s pro-student-rights ruling is especially remarkable because of some unusually sympathetic facts on the school’s side.

First, the student had a long record of disciplinary strikes (this one, in fact, was his last and he was summarily thrown out of the school without a hearing — a decision that the Sixth Circuit also found constitutionally suspect and sent back to the lower court).

Second, the student was known to have suicidal tendencies, and the teacher justified her snooping by her concern for his mental health.

And finally, the search was quite narrow — four messages — rather than a wholesale fishing expedition into the student’s social-media pages, photos and whatever else might have been viewable on his phone.

Despite all of those factors weighing in the school’s favor, the court was unimpressed. That’s an unmistakable message to schools in the Sixth Circuit states (Tennessee, Kentucky, Michigan, Ohio) and to all schools: the Fourth Amendment applies with full force to cellphones, even phones that are lawfully confiscated when used in violation of school rules.

(The student’s checkered disciplinary history was enough to persuade a dissenter, Judge Alan E. Norris, to break with the majority. Norris wrote a separate opinion, calling the relatively limited scope of the search “reasonable” based on everything the school knew about G.C.’s track record of “abhorrent” behavior.)

The majority in Owensboro Schools rejected outright a much more lenient ruling by a federal district court in Mississippi, which in 2010 threw out a student’s Fourth Amendment claim based on a similar cellphone search. There, the court decided that, once a student was caught violating a rule against using his phone during school, it was reasonable “to seek to determine to what end the student was improperly using that phone.”

No, said the Sixth Circuit, just idle curiosity about about what the student might have been doing with his phone will not suffice. The school must have concrete reasons to believe “that a search of the phone would reveal evidence of criminal activity, impending contravention of additional school rules, or potential harm to anyone in the school.”

Drawing reasonable boundaries on schools’ authority to search cellphones is essential for the well-being of all students, but especially for student journalists.

It’s almost a misnomer to use the term “phone” anymore, since voice calls are the least of what students are using smartphones for today. The phone is the Swiss Army knife of journalism, containing recorded conversations, still photos, videos, and exchanges with news sources. If schools feel free to help themselves to everything inside of students’ phones, the confidentiality of journalists’ information will be at grave risk.

(In a recent ruling that declared a cellphone search illegal outside the school context, the Florida Supreme Court ruled that the vast amount of private information accessible on an arrestee’s cellphone meant that a phone should be more strongly protected against intrusive searches than a physical space like a pack of cigarettes. In striking down a police search that yielded cellphone photos of evidence relevant to a robbery prosecution, the justices wrote: “[W]e cannot ignore that a significant portion of our population relies upon cell phones for email communications, text-message information, scheduling, and banking. Indeed, even justices on this Court routinely use cellular phones to access Court email accounts, and highly confidential communications are received daily on these electronic devices.”)

In addition to the protection of the Fourth Amendment, student journalists should recall that the federal Privacy Protection Act may offer an additional basis to object to a search.

The Privacy Protection Act imposes extra hurdles before a government employee conducting a criminal investigation may search anyplace that a journalist keeps unpublished work product (notes, photos, interview recordings, videos). With narrow exceptions, officials may not search a journalists’ workplace, home or belongings for newsgathering material without getting a court order — after a hearing at which the journalist can raise the reporter’s privilege.

The Act will not apply if the student is being investigated for misconduct unrelated to journalism — and it’s doubtful that it will apply if the investigation involves the violation of school rules rather than criminal laws. But it is always worth raising the Act and asking for time to consult with an attorney, if a search imperils the confidentiality of sensitive journalistic material.

For more about the privacy rights of public school students, consult the SPLC’s tip sheet on responding to school cellphone searches.