H-E-L-L-O: Students Have a Right to Privacy in Their Cell Phones
New ACLU of California Report
The ACLU of California has created a new report to help schools limit the use of cell phones on their campuses but at the same time, respect the privacy rights of students.
As cell phones become more and more indispensable to young people, confiscation and searches of students’ phones by school authorities have become widespread. Because such searches provide a window into every aspect of a student’s private life, they violate the laws that protect students’ privacy rights.
To avoid potential constitutional violations, the ACLU recommends that school districts refrain from searching students’ cell phones. A search of cell phone contents such as text messages, emails, web pages or games viewed, social networking connections, etc., is rarely permitted by law. Both federal laws and the California Constitution and Education Code protect the privacy rights of students.
“Simply put, to avoid potential constitutional violations, school districts should refrain from searching students’ cell phones,” said David Blair-Loy, legal director for the ACLU of San Diego and Imperial Counties.
H-E-L-L-O: Students Have a Right to Privacy in Their Cell Phones contains a model policy to help schools govern student cell phone use in compliance with federal and state laws. The model policy can easily be adapted to suit the needs of different California school districts.
The authors of H-E-L-L-O outline many privacy concerns, including these:
- Searching a cell phone can reveal not only virtually everyone a person knows and with whom he/she communicates and how often, it can also unveil a student’s political views, financial and personal struggles, family and romantic relationship dynamics and medical information such as doctor, therapist and counselor appointments.
- An administrator reviewing a student’s cell phone may uncover information regarding the student’s sexual orientation that the student has chosen to keep private from classmates, school staff, or perhaps even his/her parents.
- When students’ cell phones are paid for and owned by their parents or shared with them and/or siblings, an unrestrained search threatens not only the private information of that particular student, but that of the entire family.
The U.S. Supreme Court has long held that students have legitimate privacy expectations in public schools, and that any search of student property must be “reasonably related [in scope] to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.” A search is justified only when an administrator has “reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating the law or school rules.”
“Without reasonable suspicion that a student has violated a rule or law using the phone, beyond simply having it out in the open or turned on in violation of school policy, there is no legal justification for searching the phone,” said Hector Villagra, executive director of the ACLU of Southern California.
Curiosity, rumor or hunch, or even simply being disruptive, is not enough to warrant a search. A school may not search one student’s cell phone to discover evidence of another student’s potential misconduct.
The report acknowledges that cheating, cyberbullying, and sexting present pressing problems, but argues that “their solution cannot justify wholesale invasions of privacy, particularly in the more common instances when no such misuse of the phone is suspected.”
In the past, the ACLU has opposed such invasions of student privacy as electronic monitoring and tagging of jerseys and backpacks, the collection of student information in electronic databases to be shared with the federal government and military recruiters, random drug testing, and unreasonable surveillance.