Legislators, School Administrators Back Off Cellphone Search Bill After Running Into ACLU Opposition

Privacy

from the shocked-SHOCKED dept

Mon, Apr 24th 2017 3:08pm — Tim Cushing

Legislators working with the Association of California School Administrators are backing away slowly from a bill aiming to separate schoolchildren from their phones and their privacy. The bill would have created an exception in California's privacy law, allowing teachers and school administrators to search the contents of students' phones. Courthouse News' Nick Cahill has more details:

While short in length, the bill has stature. Its 130 words would exempt students from the California Electronic Communications Privacy Act, CalECPA, which was passed in 2015 with overwhelming bipartisan support in the Legislature.

“That law also specifies the conditions under which a government entity may access electronic device information by means of physical interaction or electronic communication with the device, such as pursuant to a search warrant, wiretap order, or consent of the owner of the device,” the new bill states.

This attempt to further limit students' Constitutional rights and legal protections ran into the ACLU's opposition, which noted the exception would "sledgehammer" the Fourth Amendment. Apparently, the backers of the bill thought it would sail through with a minimum of public resistance. Having failed to foresee the expected, supporters are rebranding their civil liberties sledgehammer.

“We’re making it a two-year bill, which means it’s not going to be heard next week. But the conversations are going to continue,” said Laura Preston, lobbyist for the school administrators.

Ah, the classic "wait until the noise dies down and try again" approach. It's just crazy enough it might work. I doubt the legislation itself will be rethought. More likely, the sales pitch will be altered to make the bill appear less sledgehammer-y.

Considering California is pretty much Protest Central, it's a bit stunning to read a legislator was "stunned" by collective opposition to a privacy-threatening bill. But that's exactly how the bill's author, Jim Cooper, described his reaction. The lobbyist for the schools, Laura Preston, went even further, utilizing the post-Godwin Nuclear Option rhetorical device:

“We introduced the bill to try and pull schools out of CalECPA, and you might as well have thought that we started World War III,” Preston said of the reaction.

Supporters of the bill claim the lack of an exception to the privacy law leaves administrators powerless. True, a school administrator can't seek a warrant to access the contents of a student's phone, but there are options schools can use rather than exempt every California student from the state's privacy law.

Most schools have electronic device policies that tie search consent to school attendance, which usually includes personal electronic devices along with vehicles parked on school grounds and lockers. A consensual search -- even if performed under an "implied consent" standard rather than a more affirmative version -- is still a "clean" search, though possibly one less likely to survive a courtroom challenge. Many schools also have police officers on staff. Whether or not these officers can seek warrants to access phone contents is unclear, but in cases of suspected criminal conduct, this would be turned over to law enforcement anyway.

Supporters undercut their Homeroom Apocalypse arguments with their own statements, though.

Since CalECPA was enacted, students have been refusing to hand over their cellphones to teachers and administrators, Preston said. She said teachers usually want access to cellphones to prevent cyberbullying and cheating on tests, not to delve into social media or text messages for criminal content.

I'd really like to hear how paging through some kid's phone "prevents cyberbullying." It may be used to find evidence of ongoing cyberbullying, but it's not going to head it off. If it's really bullying, there are a variety of school policies and law enforcement options available to school administrators that don't involve digging through a student's phone -- a device that will contain far, far more personal info than should be sought by administrators with zero law enforcement training or acumen.

Cheating on tests can be resolved simply by requiring phones to be secured somewhere away from the testing area, like in students' lockers or in instructors' possession until testing is complete. Digging through someone's phone might expose a cheater, but it really seems like overkill considering the privacy issues at stake. It's also not something that should involve any on-site law enforcement officers, even if their powers are slightly limited.

What is clear is "stunned" politicians and school administrators haven't given up on their dream of crushing students' Fourth Amendment protections. No doubt the ACLU -- and others -- will be keeping an eye out for Sledgehammer 2.0 later this year.

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Filed Under: 4th amendment, california, mobile phones, privacy, schools, searches
Companies: aclu

30 Comments

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That Anonymous Coward (profile), 24 Apr 2017 @ 3:17pm

Perhaps if they added a clause that parents could demand that teachers and administrators turn their phones over upon demand...

I mean there are cases where teachers have had sex with students, won't someone think of the children?

Oh you're complaining its invading your rights??

ProTip: If you aren't willing to be bound to the same terms, its a bad idea.
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Christenson, 24 Apr 2017 @ 3:46pm

Phones and cheat sheets and the teacher telling the class to make them...
I forget what class it was, but one of my teachers told everyone they could have a 2 inch by 2 inch cheat sheet for the test. Result? To make the cheat sheet, you had to learn the material!

I don't see why a cheat screen on a phone would be any different...the act of creating it would be the act of studying the material. And if you were lazy and copied? You would *still* have a hard time on the test!
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Anonymous Coward, 24 Apr 2017 @ 4:09pm

That is NOT my childs cell phone, It is my cellphone that I allow my child to use with the condition that They unlock it for NO ONE!

So if you want to search MY Cell Phone, well then you can kiss my 4th amendment lovin' keister!
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JoeCool (profile), 24 Apr 2017 @ 4:34pm

My how things have changed... for the better!
When I was a kid, kids had NO constitutional rights. We had special protections... child labor laws and the like. It was a trade-off we accepted. No free speech and illegal searches were legal, but no slave labor.

Now they have damn near as many rights as adults! And they STILL have their special protections as well! They got it good these days.
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Anonymous Coward, 24 Apr 2017 @ 4:34pm

>That is NOT my childs cell phone, It is my cellphone that I allow my child to use with the condition that They unlock it for NO ONE!

Isn't that always true? Legally, a child CANNOT sign the service contract or assume any obligations it imposes.
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zeiche (profile), 24 Apr 2017 @ 4:41pm

School administrations have had opportunity to tackle the non-cyber version of bullying for over a hundred years. Not so much has happened on that front despite students getting literally beaten up daily. Let's focus on that before searching children's phones.
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Anonymous Coward, 24 Apr 2017 @ 5:28pm

What 4th Amendment?
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Anonymous Coward, 24 Apr 2017 @ 5:38pm

skools & airports
public schools, like airports, are Constitution-Free-Zones

If anyone really cared about the Fourth or Fifth Amendments -- compulsory school attendance laws would not exist.

The main function of the public school is not education but social control.
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Jeffrey Nonken (profile), 24 Apr 2017 @ 7:52pm

When your only tool is the law, every problem looks like a crime.
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CanadianByChoice (profile), 24 Apr 2017 @ 8:05pm

Secondary goals
I think that the real purpose here is to condition children to accept "on the spot" searches that are actually illegal ... then, when they are adults, they won't question the authority of LEO's to continue to search at will without warrants or probable cause. Same with excessive surveillance in schools; get 'em used to it young and they won't question it as adults.
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CanadianByChoice (profile), 24 Apr 2017 @ 8:07pm

Re: skools & airports
Absolutely true!
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Anonymous Coward, 24 Apr 2017 @ 11:21pm

Re: Re: skools & airports
I want you to know that my idea of society trumps your constitutional rights.

~People in general regardless of party!
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Bergman (profile), 25 Apr 2017 @ 12:52am

Re: Phones and cheat sheets and the teacher telling the class to make them...
The difference is, the one on the phone might be made by someone else.
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Bergman (profile), 25 Apr 2017 @ 1:02am

Re: My how things have changed... for the better!
Um...that would make you at least 245 years old -- 1789 being the year the Constitution was written.

The 14th amendment went into effect in 1868, which declared that citizenship begins at birth and did not exempt kids from being citizens. If that's the law you're referring to from when you were a kid, that would make you a minimum of 166 years old.

Even if you're referring to the Tinker v. Des Moines Supreme Court case, that would make you a minimum of 65 years old -- that case was in 1969 and ruled that kids DO have rights, always have had rights, and a school needed a damned good reason to try to infringe upon those rights (which the school district in question in that case did not have).

If you are younger than 245, then you are mistaken about kids not having constitutional rights when you were a kid. People younger than 65 don't even have the excuse of kids having rights being an unknown thing when they were kids.

There is no age requirement on citizenship, it begins at birth. Citizens have rights, period. Government officials have always gotten drunk on their petty amounts of power and used it to violate the rights of others. That's nothing new.
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Bergman (profile), 25 Apr 2017 @ 1:06am

Compulsory attendance is consent now?
If you don't go to school, you go to jail -- and possibly your parents with you. So there's nothing voluntary about mandatory school attendance.

Compared to that voting, having a job and owning a house are much more voluntary acts. By the standard the school districts like to argue, any sort of voluntary participation in society could be made into a voluntary waiver of your rights without violating the Constitution. Even if it's only 'voluntary' in the sense you get forced to volunteer at gunpoint if you decide not to volunteer.
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Anonymous Coward, 25 Apr 2017 @ 2:34am

Re: Compulsory attendance is consent now?

If you don't go to school, you go to jail --

Not strictly true, the requirement on parents is to ensure that their children have an education. Parent can provide that at home for their children, and some do.
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Anonymous Coward, 25 Apr 2017 @ 6:51am

Re: Compulsory attendance
"Home-Schooling" still represents compulsory schooling... regulated by the government.

it is a crime for parents NOT to school their children in a government-approved program, including home schooling.

Rules vary among states, but in all cases the government gets the final say in what is an "acceptable" home schooling program by individual parents. Parents often have to register with the local school district, adhere to state curriculum requirements, and submit formal reportd on their child's schooling progress.

90% of Americans attend public schools; home schooling is 1-2%. The government commands it all... with criminal law.
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Anonymous Coward, 25 Apr 2017 @ 7:35am

Re: Re: Compulsory attendance
So by your public school math, up to 92% of kids get a education from either the Public School System or Home School. What about the other 8%? Are they defying the Government?
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Ninja (profile), 25 Apr 2017 @ 8:17am

Re:
I'd love to see someone throwing that question publicly to the morons that support this law. It would be fun to watch them struggle to get out of the dilemma.
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Vincent Clement (profile), 25 Apr 2017 @ 9:28am

Isn't forcing someone to give you something the very definition of bullying?
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tom (profile), 25 Apr 2017 @ 9:47am

If the phones are the problem, just ban them from school grounds.

As far as searching the phones, a better approach might be to task a set of judges to be on call to issue warrants based on requests from school administrators. That way, student's rights are preserved.
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Anonymous Coward, 25 Apr 2017 @ 10:47am

Encrypt all the things!
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JoeCool (profile), 25 Apr 2017 @ 11:51am

Re: Re: My how things have changed... for the better!
You're clearly not over 40. When I was in school, random locker searches was common. They did it after school or during classes, and you had no say in the matter. They simply went through the lockers and turned anything illegal over to the cops, and anything against the school rules got you suspended. You might TECHNICALLY have rights, but they were ignored without consequences. You couldn't complain to anyone, and lawyers would laugh you out of the building... unless your family was rich and/or well-connected.

They could search your bags, your person, your locker, your car (if you actually had one)... all without any cause or permission. If drug tests had been a thing back then, they'd have done it!

School papers could be censored (and were), dress codes were enforced without recourse, meetings on school could be monitored and banned - basically, there was no first amendment as far as students were concerned. Again, only the rich and connected were exempt from any of this, and there was no recourse for the average student.
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orbitalinsertion (profile), 25 Apr 2017 @ 8:37pm

Re: Re: Re: Compulsory attendance
There are craptons of private schools.
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Wendy Cockcroft, 26 Apr 2017 @ 5:34am

Re:
Why not simply ask the parents for permission to search kids' bags at school? There should be a form they sign that gives consent for the search to take place — or obliges the school to call them first before searching.

If bags must be searched, what for? A clear distinction needs to be made between sweeties and guns, for example. I'd also insist on probable cause and a full report on each search so you don't get over-eager school staff searching the bags of kids they don't like at will.
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Bergman (profile), 26 Apr 2017 @ 11:47am

Re: Re: Re: My how things have changed... for the better!
Just because they did it doesn't mean it was legal. If nobody ever broke the law, nobody would have ever invented police, prosecutors or criminal law judges.

And by the by, I'm 42.
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JoeCool (profile), 28 Apr 2017 @ 11:18am

Re: Re: Re: Re: My how things have changed... for the better!
Never said it was legal, only that it was commonly done anyway without repercussions. And you must have gone to one of the "better" schools to have not seen any of this. And if you claim to have gone to an inner city public school and never saw it, I'll be forced to claim Shenanigans! :)

Anywho, the whole point was that I'm (pleasantly) surprised at how good kids have it today. True, they have their own problems, but First and Fourth Amendment violations are not (often) one of them.
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A3n0nym0us (profile), 27 Apr 2018 @ 6:01am

Re: Re: Re: Re: Re: My how things have changed... for the better!
Unfortunately, since the locker (however, not the contents) is school property, locker searches are common and generally thought of as perfectly legal. In my school, they have periodically done backpack searches, which get more pushback as the backpacks, as well as the contents, are owned by the students. Contrary to the precedent set by Tinker vs. Perry, saying "students do not shed their constitutional rights when they walk through the schoolhouse gate," we are still subject to mild-medium 1st amendment violations, and severe 4th, 5th, and 14th amendment violations on a very regular basis. We have come far, but we still have a ling way to go
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A3n0nym0us (profile), 27 Apr 2018 @ 6:05am

Re: Secondary goals
Agreed. It is about the social norms, trying to get young people to blindly accept unconstitutional search and seizure at random throughout their lives. The indoctrination and censorship of students is just trying to get them to blindly follow authority for their whole lives.
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A3n0nym0us (profile), 27 Apr 2018 @ 6:08am

Re: Compulsory attendance is consent now?
Exactly. Truancy is a severe offense, and saying that going to school in order to not go to jail is the same as waiving your 4th amendment rights is some BS pulled by rich lobbyists who don't understand the tech that kids use so they ban it instead of educating themselves.
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