Demanding A Student's Facebook Password A Violation Of First Amendment Rights, Judge Says
from the well,-we-all-know-who-the-REAL-bully-is-here... dept
For some strange reason, a large number of schools adhere to the notion that their students are not actually citizens of the United States and therefore, not granted the same rights as the "grownups." The rationale for the limitation of these rights usually involves the word "safety," a word that has been (ab)used in various forms to curtail rights of full-grown American citizens in other arenas.This isn't to say that all, or even most, schools are violating students' rights, but the sheer number of incidents reported isn't very comforting. Fortunately, some decisions are being handed down that should, if nothing else, provide precedent for those challenging administrative overreach.
On September 6, a decision was handed down in a suit brought against the Minnewaska Area School District (Minnesota), dealing with a twelve year old student who was coerced into giving school officials the password to her Facebook account so they could search it for messages they deemed inappropriate.
R.S. was a twelve year old student at a Minnewaska Area middle school. She posted a message to her Facebook page about an adult hall monitor at her school:Venkat Balasubramani has added his own punctuation to some of the more dubious or ridiculous statements made by school officials. First off is the charge of "impermissible bullying" (there's a "permissible" variety?), a broad term used nearly as often by school administrators as "disorderly conduct" is used by cops.
"[I hate] a Kathy person at school because [Kathy] was mean to me."
The post was only accessible to her friends. One of her friends brought the post to the attention of the administration. The principal called R.S. into his office and told R.S. “that he considered the message about Kathy to be impermissible bullying.” (???) As a result of the message, R.S. was required to apologize, given detention, and received a disciplinary notation in her records. R.S. was disciplined a second time when she expressed her chagrin that someone had told on her (“I want to know who the f%$# told on me.”) [“f%$#” in original] This time she was disciplined for “insubordination” and “dangerous, harmful, and nuisance substances and articles.” (???)
In essence, "R.S." was punished for "being a kid" (i.e., not liking something that happened at school, complaining, being ratted out and complaining about that, etc.). The handling of this first incident makes the school appear to be as vindictive and thin-skinned as the child they punished.
This isn't the end of the story, however. The school also received a complaint from a parent that R.S. was discussing "sexual topics" with another student "on the internet." For whatever reason (most likely stated as "concern for her safety"), the school decided to pull R.S. from class and grill her about the particulars of these conversations. Apparently, her answers weren't good enough, so three school counselors and a taser-armed cop interrogated her until she gave up her Facebook password. They proceeded to search her account, including private messages, for evidence of these conversations. Still not satisfied, they decided to search her private email messages.
After this traumatizing and intrusive incident, R.S. decided to sue the school district for violating her constitutional rights. The court agreed with her on both claims:
First Amendment claims: The court has no trouble concluding that assuming the facts as alleged as true, school officials violated R.S.’s First Amendment rights. The court says that posts on social networks are protected unless they are “true threats” or are reasonably calculated to reach the school environment and pose a safety risk or a risk of substantial disruption of the school environment. R.S.’s posts were not true threats. Even assuming the statements were reasonably calculated to reach the school audience, there was no possibility of disruption.If the alleged facts are true (and the court takes care to point out this "if"), the school will likely be writing out a settlement check. This decision, a response to the school's motion to dismiss, also allows for claims of invasion of privacy (although it does dismiss claims for "intentional inflection of emotional distress"). It doesn't seem like the school is debating the facts as presented, not if its argument that R.S.'s violation of Facebook policy (she's 12 and you "have" to be 13 to sign up for an account) means she's entitled to fewer constitutional rights is any indication.
Fourth Amendment claims: The court also says that the school officials violated R.S.’s Fourth Amendment rights to the extent they rummaged around in her Facebook page and her private email account. Private emails were like letters of other private conversations, and subject to Fourth Amendment protections. Private Facebook messages are no different. There was no evidence that the officials tailored their search to minimize the intrusion. Even if they had, they had no underlying basis to search in the first place.
Eric Goldman adds his own analysis, pointing out the inherent problem with most bullying policies/legislation:
[I]t's a good example of how administrators might use the "bullying" label as a pretextual justification for punishment. The term "bullying" has way too much semantic ambiguity, but it should never stretch as far as calling another person "mean."This is something administrators should keep in mind when crafting/revamping school policies. They should also be reminded of this simple fact, as stated by Judge Michael Davis in his decision:
For more than forty years, the United States courts have recognized that students do not check their First Amendment rights at the schoolhouse door."Safety" does not trump rights, just as surely as "policy" does not trump (or at least, shouldn't) trump common sense and proportionate responses.
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Filed Under: free speech, passwords, school, social networks, students
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That's because they aren't allowed to debate the facts on a Motion to Dismiss. The facts are taken as true for the purpose of the motion; the issue is whether the facts as pled are enough to state a claim.
But ... that the judge took "pains" (quoting Venkat) to make it clear the allegedly facts may not be true, tends to indicate the court is already wary of the veracity of the plaintiff's claims. Judges do not have to couch the ruling in such terms, and often do not.
My $5 says it settles before we find out.
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In the end who is the bully?
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I think that one is easily answered. The ones who got the password and who did so using three school authority figures and one law enforcement figure (armed with a taser).
Four adults all in positions of power against one twelve year old girl. Who had already been forced to give up private information by the school officials.
Bully to them. I hope this cost them an arm and a leg, it's just a shame it's the taxpayers who are footing whatever settlement is given. I think we need reform where those who do actual harm or violate the rights of others are forced to pay for damages and whatnot out of THEIR own pockets. (If that were the case, I suspect a lot more cops would be a bit more careful about abusing their powers.)
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I completely subscribe to the idea that we have to be more human with one another, but accountability goes directly against this concept because it can both encourage positive behaviors and abuse. IMO, because of the risk of abuse (e.g., getting sued for saving someone's life, for example), I think it is more likely that it would encourage more ass-covering than it would positive behaviors.
So, were that approach taken, I think that we could sit back and watch as teachers and administration officials worked very hard not to intervene or get involved in any issues at school in order to avoid liability.
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I have multiple jobs, two in the health care field. And we're already seeing lots of things and receiving orders that basically consist of, "Hey, I know you guys might see some things or be around people in dire need of medical assistance. DO NOT TOUCH THEM. No matter what. You can mean well and actually be in a position to help them and potentially save their lives, and some of you are even licensed/certified to do so, but DO NOT. Because no matter what, if things don't go 100% perfectly, and even if they do, chances are you're going to put yourself at risk and our association as well."
However, I do get what you're saying. But at what point do we decide that enough is enough? Meaning, at what point, do we stop footing the bill for the mistakes of others?
Proper reform would make exceptions. Meaning, only in situations like the one above, or involving law enforcement officers abusing their power, etc and if it's determined by a court of law that they have violated the rights of another at that point THAT person is held financially responsible for compensation to the wrong party. Something like that I could and would get behind, as I think the majority of taxpayers would.
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It just seems that without something like that on the books, no one would dare try and help someone injured, as they could end up in an even worse situation due to simply trying to help and making a mistake.
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...
You'll have to excuse me, my brain seems to have seized up due to trying to understand that. The idea that someone who has no bloody idea what they are doing is less liable for any mistakes they make if they are trying to help, than someone who does know that they're doing in the same situation... how drunk/stoned do politicians have to be to come up with crap like that?
If nothing else that would cause a horrifying affect, where the people who are more likely to be able to help are also the ones who are less likely to want to, due to the possibility of being punished for doing so.
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> cops would be a bit more careful about abusing
> their powers.)
They'd be so careful you probably wouldn't be able to find one when you needed them.
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> it in a while, but employers cannot require
> you to give out your facebook password.
You are mistaken.
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> for their Facebook details? In my opinion, that
> comes under the exact same heading of grievous
> breach of privacy and security.
The difference is that employers are generally private business who are not bound by the 1st and 4th Amendments as these school administrators are.
There are, however, federal employment laws which regulate what even private businesses may ask potential employees. By looking through the private portions of someone's Facebook account, the employer is almost certainly going to come across information that they would be legally forbidden to ask about during the interview.
*That's* the legal tact to take in challenging an employment scenario, not the constitutional violations and invasion of privacy claims that were made in this case.
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rights, schmights
The courts will then compell FB to comply or be held in contempt. Problem solved.
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Re: rights, schmights
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Tell that to Twitter.
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Comedy ensues.
And there is no possible way this school administrator would do ANYTHING to hassle the little brat who made them look bad.
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When you have to sue your school, you should realize before you begin that you are probably done there and will need to continue your education elsewhere.
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Why are the people who violated the law, ignored rights, cost the taxpayers a large sum of money still employed?
I never do understand this in these cases, as the final kick to you for exposing us as bullies... we are keeping the person who is unfit for the job... on the job, enjoy.
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That rather than assume that the system magically takes care of itself, that they need something not part of the system providing oversight.
It would be interesting to find out how many other children these administrators terrorized with these methods who didn't speak out. I'm sure its a wonderful place to learn when students live in fear of comments they make outside of school being used to punish them in school.
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We want to think it will all be puppy dogs a kittens, but the truth is the school officials involved will be seeking retribution in any way possible for this student making public their abuse of the law.
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Tell that to Federal Government
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Re: Tell that to Federal Government
Government at many (not all, but far too many) levels sees keeping themselves in power to be a higher calling than the Constitution.
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Let me get this straight: a school, in an effort to curb "bullying", interrogated a little girl with threats of violence?
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A police officer shouldn't be involved unless it's a matter of law, as in, the student is suspected of a crime. If the student is suspected of a crime, they are not old enough to consent to waiving their rights to have an attorney present or have their parents aware or present.
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These people are supposedly adults. They might re-think how far things should go about someone writing or speaking "I have X because they are mean to me".
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Not done in school, but they wasted time and resources trying to invent a greater crime on the childs behalf to justify what they had done.
They are qualified for TSA, not teaching.
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It is all clear now
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Kidding.
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Re: Kidding.
+funny
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Re: Kidding.
Yes your honor, we find the defendant people to be dooty heads!
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Re: Kidding.
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"This isn't a democracy. We're a dictatorship. Do what we say or else."
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Umm, does not trump trump common sense? I think you confused yourself some with your brackets there...
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Administrators' behavior will change..
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Parental Involvement Lacking?
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Re: Parental Involvement Lacking?
The first issue was literally a 12 yr old saying she disliked someone she perceived as being mean to her.
The school decided she wasn't allowed to have a negative opinion of someone and attacked.
When she expressed anger at someone telling on her, they attacked again.
Then some "parent" was upset because HER CHILD engaged the student in a "sexual natured" chat, and they then decided to pull her out of class, interrogate her and dig as deeply as possible into her life.
I'm willing to bet when they contacted the mother, they never said oh we are gonna yank her out of class, force her to hand over her password, and for extra fun troll through all of her emails.
Parents might assume, apparently incorrectly, that these professionals are actually qualified to educate children. Instead you have an authority figure punishing a child for saying she disliked someone, and being upset that a "private" comment she made was repeated to that authority figure.
Parents often abdicate their responsibilities, expecting society to protect their precious little snowflake. No one expected them to go the extra mile of interrogation and extracting information in violation of the law. I'm willing to bet if they had explained their entire plan the parent would have flipped out, but instead the "professionals" said we know what we are doing.
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Granted, the child may have forged a signature the first time... Considering that there are several instances and the third one involved another parents independently calling the school, I would wager that this one is a trouble-maker. Not that she should have had to put up with this, but that's just my inference based on the few facts provided.
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Your SEO skills are nice, your ability to write a passable comment... not so much.
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Call the parents... They are the ones who actually have the authority and the responsibility to curtail their children's behavior outside the school yard.
If the headline was "Concerned mom looks through their own child's Facebook to stop bullying!" I don't think this would end up in the news.
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And admit they interrogated the child and were unable to force the child to kowtow to their whims.
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Wait a minute...
And then win?
How do I get in on this racket???
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Besides, if you did alert the school to such an event in order to protect your child, would you expect the school to have an armed cop interrogate your child as the appropriate response? That would be a traumatizing event that could leave lasting scars. A lawsuit against the school for this is definitely an appropriate response to the school's actions.
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For more than forty years, the United States courts have recognized that students do not check their First Amendment rights at the schoolhouse door.
That's a judge saying that. Think your principal was having one over on you. My HS principal tried pulling the same thing on me. I told him where to shove it, and my parents backed me.
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Complete violation
Also, in the case of this 12 year old girl, where were her parents? What on earth were these administrators thinking grilling this young girl and forcing her to give up her password without getting them involved? If anyone is allowed to ask her for her password, it's her parents and her parents alone.
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Get rid of media in the home...
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Just a head's up, but crippling kids' abilities to mesh with, or even adequately cope with, society, under the guise of 'protecting' them, is not something to be proud of.
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"Would you like fries with that?" or "Hey buddy can you spare some change?"
While your busily shoving more onto their plates to give them a "better" childhood than you had, your actually setting them up for failure.
Are your children aware of the protests happening around the globe?
Have you discussed how cultural differences are helping this to happen?
Are they aware of the advances happening in the world?
Why do you need the school to tell you to limit your kids access to reality? Why do parents find it impossible to do these things? Does the idea of your children being stunted in understanding the world enter into the equation?
You do understand you've taken the position of saying its perfectly ok for a school to terrorize a child and read private emails, because they just should have banned FB during the week.
Soccer, spell it with me Soccer mom.
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Re: Get rid of media in the home...
> the week" policy (TV, cell phones, computers).
> It's not as impossible to enforce as you might think
It is without violating most of the Bill of Rights.
Your school sounds like something out of a Bentley Little novel. No public school has the authority to regulate what goes on in my home. If I want to let my kid watch TV or use a computer, it's none of the school's business, let alone for them to try and 'enforce' it on me.
And unless my kid goes in and tells the teacher, "I played Halo last night and then watch BIG BANG THEORY," how would the school even know what to enforce?
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Wanna bet?
Because I'm self centered, I'm American afterall (maybe),
1 - Teh Gays. (My mom is so proud I'm top of the list)
2 - Brown people in robes.
3 - Brown people who speak Spanish.
4 - Muslims.
5 - Women. (Uterus's (Uterii?!) are evil things and we need federal laws controlling their use.)
6 - People who don't accept Jeebus.
The list goes on and on, my ability to make fun of it fades as I just get more sad at how much humans suck.
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How to Properly Use FB
1) Delete real FB profile.
2) Create alternative profile (yes, a fake name so this way, you're not pressured to add annoying family and others as friends).
3) Privacy, privacy privacy...lock down that profile.
4) If school/work asks for your FB profile, you can confidently tell them that you don't have one.
5) Limit time on FB...you should have a life too.
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Re: How to Properly Use FB
"A strange game. The only winning move is not to play."
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The first three words needed on this 'settlement check':
Everyone involved in this case is obviously unfit to be involved in dealing with children in any way, so while a nice settlement check(taken out of the school budget of course, can't have the people involved be punished) would be nice, a real 'payment' to the one who got harmed would be to have those that abused their positions fired and blacklisted from ever being in such a position again.
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Complete Invasion of Privacy
Even if the student violated Facebook's Terms and Services, the student's account does not automatically become open to the public - which is what the action's of the school imply should have been the case.
The only legal recourse in this situation would have been for the school to contact Facebook. At which point it would be up to Facebook to hand over the information.
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If something so serious that they would justify this kind of activity is really going on, it's the parent's responsibility to handle this, not the school's. The school should have contacted her parents about this, then butted out.
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How long till they setup some sort of reporting system (not sure how else they would find out about this). Some person/business does this more than X times, their page is banned, possibly with a blacklist page on why.
See how many businesses / schools keep up the practice once the first few suddenly don't have a presence on Facebook anymore. Not to mention your pictures/contact-list disappearing.
a href="http://www.connection2forex.com/">forex trading
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Facebook ToS
The school's behaviour was inexcusable. But there was also a lack of parental oversight, it seems.
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And I do believe the 13 yr old thing is some sort of "ZOMG THINK OF THE CHILDREN" panic law that was passed to make the interwebs perfectly safe for children, rather than just some sort of stupid FB construct.
Is it fun trying to blame the victim?
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Bullying people with bullying charges
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Stay out of others business
Not only is it wrong in all parts of the world to 'hack' someones facebook and email (regardless how old said victim is) It is also wrong (in my eyes) to punish one for expressing their feelings and thoughts... Calling someone 'mean' is not bulling - But interigating a child for their personal and private information is infact bulling... So my conclusion, someone needs to get into these 'teachers' and teach them about the appropriate way to 'react' when people are concerned about a fellow student. I understand it is a teachers job to ensure the saftey of their students, but that doesnt mean that they go through all their students personal thing - If you ask me, Facebook has just created, in people all over the world, a fond desire to be in everyone business because now they cannot handle not 'being in the loop' with all the gossip
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First Amendment
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This article BS
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This article BS
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wow
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