Cell Phones at School and Student Expectation of Privacy

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We’ve covered this issue a couple of times before on this blog, but given the interest I thought I would respond to some of the comments that have been posted and provide some insight gained from discussions I have had with folks over the past few months.  Some people have suggested that students have effectively no right to privacy in schools.  On its face, this is patently false – students do in fact have *some* privacy rights in schools.  That said, the rules are different in schools than in other public places.

All Americans are protected against “unreasonable” searches and seizures (4th Amendment), and what can be classified as “reasonable” varies depending on the context.  In schools, educators can generally search student property if (and only if) they have a good reason to believe that evidence exists therein which will reveal a violation of school policy.  If that evidence is found, the offending student may be subject to an administrative sanction by the school (e.g., detention, suspension, etc).  For example, if a credible student tells a principal that another student at school has a phone in the classroom that includes the answers to the algebra exam, then a search may be allowable given these circumstances.

This ability to search can be contrasted with that of law enforcement, who are required to abide by a higher standard.  School (or other) police officers must have probable cause that evidence of a crime exists in order to conduct a search of property.  To be clear, mere suspicion is not enough for law enforcement officers.  They must be able to articulate to a judge that probable cause existed (either before the search is conducted or after at trial).  For example, if a credible student informs a school resource officer (a sworn police officer) that another student has a gun in his or her backpack, clearly the officer would be able to search the backpack.

If we apply these principles to the issue of cell phones in the classroom, we know that educators or law enforcement officers can in fact search a cell phone under some circumstances.  Either way, there has to be some articulable level of knowledge that the cell phone contains evidence of a violation of school policy or criminal law (depending on who is performing the search).  In the opinion of many, simple possession of the phone in the classroom, while in itself a violation of school policy, does not provide license to search that phone by anyone.

Always remember that neither Sameer nor I are attorneys, and so this should not be interpreted as legal advice.  Furthermore, these are very complicated issues that cannot be adequately covered in a short blog posting.  There are many exceptions to the basic principles outlined above.  As always, consult an attorney who specializes in school and/or privacy law.  Even they, however, often disagree as to how these laws and court rulings can or should be interpreted.   Case law and precedent are currently being formed as schools and courts wrestle with these issues.  If you are aware of any incidents that have gone to court related to this topic, please pass them along so that we can analyze and distill what can be learned from them.

21 Comments

  1. Its an invasion of privacy to look through students cell phones without permission. Its none of the teachers or principals business what we talk about on our cell phones!!!!!

  2. I have had my phone taken away and my principal went through my text messages!!!! I was sooo mad. Not to mention my friend sent me something innopropriate and he saw it and showed my dad!!! Thats when i relized he has gone through my text messages! I couldnt say anything because i did not want to get in more trouble but i guess it wouldnt be that bad if i said something because i do have freedom of speech. Not to mention the 4th admendment also backs that statement up.

  3. At my school students take the batteries out of our phones when they are confiscated for having them out during the school day, teachers and administrators force us to give them the batteries. Personally i think they DO NOT have the right to take the battery. I mean we cant use it to copntinue texting and they say they dont search texts but if they dont then why do they need the battery? how long will it be until they decide to buy chargers just to figure out which other students are texting or using their phones during school? I believe this involves multiple violations of privacy and freedom of the student. Amendment IX(9) states that just because certain rights are not written in the constitution does not mean that they do not exist. This amendment was written for things like this that they didnt experience in the past. Unreasonable searches or seizures means that NO ONE can search with out probable cause meaning that EVERYONE should need a search warrent on public property. The constitution states that the state needs a search warrent to search someone if there is probable cause. I go to a public school which means it isnt private property therefor they should need a search warrent to search a students phone. if anyone disagrees please state why.

  4. In today society an individual should not expect to receive privacy when transmitting any type of information with technology. Sexting in essence therefore should be considered something that will be viewed by many individuals even though it was meant for just one person eyes. Most adolescents after receiving these types of messages will tend to show or forward the message to their friends not knowing the possible consequences and effect of their actions. By committing these acts adolescents can be charged with a sex offender charge or be placed on the registrar. However, on the other hand the perpetrator might be just sexting for romantic reasons which ultimately lead to potential problems. Adolescents also need to be made aware of the consequence’s, policy needs to be put in place and clearly defined also adolescents needs to be placed on notice for certain actions. This is a challenging task because adolescents tend not to follow rules and laws

    • Agreed. It is one thing to advocate minimal intrusion upon conversation that one hopes to be private. It is another to blindly expect such privacy.

      It’s easy to forget that cell phones and other wireless devices are all transmitters, mostly radio transmitters. As such it is possible, though not always easy, for an interloper to intercept the transmissions of these devices while remaining undetected.

      Every person using a cell phone should be warned as follows:
      THIS DEVICE IS A RADIO TRANSMITTER. AS SUCH, BE ADVISED THAT YOU MAY BE LEGALLY VIEWED AS NOT HAVING THE “EXPECTATION OF PRIVACY” (A LEGAL PHRASE) AND THAT THE CONTENT, DESTINATION, AND/OR CALL PATTERNS OF YOUR CONVERSATIONS USING THIS DEVICE MAY BE USED AGAINST YOU IN CIVIL OR CRIMINAL COURT.

  5. Social Media and Mobile Internet Use among Teens and Young Adults is a very interesting article. It explains how statistics have increased or decreased among people depending on the age group and internet usage or other social technology matter. It talks a lot about internet usage. It shows graphs showing how teens are the ones that use internet a lot and more frequently than others. It also talks about how families with teenagers cause an increase on adopting home broadband. 63% of teenagers go online everyday; that is 2/3. I think is a very high percentage. Statistics like this show how people get addicted to technology and how they start misusing it. When people spend so much time on the computer, they start getting bored and start doing things they are not supposed to. In addition to this, this article also shows us the crazy statistics about cell phones ownership among teenagers. 75% of teenagers have a cell phone which is not too far from the 83% of adults owing a phone (2009). Owing computer a computer is also kind of high I would consider. As technology advances people start preferring new and more sophisticated items. This is why laptops have overtaken desktops as the computer of choice in young people. When we talk about ipods and mp3 players teenagers are also on top of the list for owing one. These are only some examples from the article to show how younger teenagers are on top with technology. The article also discusses the wireless internet usage, game devices, and different social networking site. Something that really caught my attention was the section where it talks about health information. I honestly though that teens between 17-19 were not really into health and stuff like that but after looking at this statistics I think differently. I think it is very nice that teenagers especially girls this age start caring about subjects like this. At the end of this article, there is essential information about the study itself. It explains how the study was done; how they collected the data sample design, how they analyze the data. I believe this information is important to understand the whole study. After I finished reading this section, it actually made more sense. In conclusion, I believe this article was very helpful to notice the different changes technology is causing in our society.

  6. Social Media and Mobile Internet Use among Teens and Young Adults is a very interesting article. It explains how statistics have increased or decreased among people depending on the age group and internet usage or other social technology matter. It talks a lot about internet usage. It shows graphs showing how teens are the ones that use internet a lot and more frequently than others. It also talks about how families with teenagers cause an increase on adopting home broadband. 63% of teenagers go online everyday; that is 2/3. I think is a very high percentage. Statistics like this show how people get addicted to technology and how they start misusing it. When people spend so much time on the computer, they start getting bored and start doing things they are not supposed to. In addition to this, this article also shows us the crazy statistics about cell phones ownership among teenagers. 75% of teenagers have a cell phone which is not too far from the 83% of adults owing a phone (2009). Owing computer a computer is also kind of high I would consider. As technology advances people start preferring new and more sophisticated items. This is why laptops have overtaken desktops as the computer of choice in young people. When we talk about ipods and mp3 players teenagers are also on top of the list for owing one. These are only some examples from the article to show how younger teenagers are on top with technology. The article also discusses the wireless internet usage, game devices, and different social networking site. Something that really caught my attention was the section where it talks about health information. I honestly though that teens between 17-19 were not really into health and stuff like that but after looking at this statistics I think differently. I think it is very nice that teenagers especially girls this age start caring about subjects like this. At the end of this article, there is essential information about the study itself. It explains how the study was done; how they collected the data sample design, how they analyze the data. I believe this information is important to understand the whole study. After I finished reading this section, it actually made more sense. In conclusion, I believe this article was very helpful to notice the different changes technology is causing in our society.

  7. Teachers and school administration do have the right to look at text messages when your phone is taken away. They ALSO have probable cause to do so because how do they know you aren't cheating during a quiz or helping someone else out in school by providing answers. I'm not a teacher and I also felt like I was a rebel in my high school years, however, rules are rules and most schools don't allow cellphones. You can't expect to have any amendment defended when you are breaking the rules. Rules in school for children/young adults = law.

    • Not knowing whether a student is cheating is NOT probable cause. It is even questionable whether it always rises even to reasonable suspicion. Suspicion it is, but mere possession of the phone is not REASONABLE suspicion.

      I will pursue vigorously in court anyone who searches my kid’s phone under the simple circumstance that the phone was found where it is prohibited and without any other evidence that it was being used to break the law or school rules.

  8. Teachers and school administration do have the right to look at text messages when your phone is taken away. They ALSO have probable cause to do so because how do they know you aren't cheating during a quiz or helping someone else out in school by providing answers. I'm not a teacher and I also felt like I was a rebel in my high school years, however, rules are rules and most schools don't allow cellphones. You can't expect to have any amendment defended when you are breaking the rules. Rules in school for children/young adults = law.

    • Not knowing whether a student is cheating is NOT probable cause. It is even questionable whether it always rises even to reasonable suspicion. Suspicion it is, but mere possession of the phone is not REASONABLE suspicion.

      I will pursue vigorously in court anyone who searches my kid’s phone under the simple circumstance that the phone was found where it is prohibited and without any other evidence that it was being used to break the law or school rules.

  9. Folks, be very careful what you send over a cell phone. Also, be careful about what you say online unless you read and understand very clearly the privacy policy of the service you are using to say those things (most people are not that diligent). Using these media could imply, in criminal and/or civil court, that you implicitly accept that you lack the “expectation of privacy”, and therefore are knowingly and willfully stating everything you say in public.

    If you must do something that you want to remain private against ANY intrusion, use your technology-based medium to arrange a face-to-face meeting and then have your private discussion in person.

  10. Folks, be very careful what you send over a cell phone. Also, be careful about what you say online unless you read and understand very clearly the privacy policy of the service you are using to say those things (most people are not that diligent). Using these media could imply, in criminal and/or civil court, that you implicitly accept that you lack the “expectation of privacy”, and therefore are knowingly and willfully stating everything you say in public.

    If you must do something that you want to remain private against ANY intrusion, use your technology-based medium to arrange a face-to-face meeting and then have your private discussion in person.

  11. Dr. Hinduja, can I get a copy of the slide you used for the HCPSS presentation on 4/26/12 which showed the national averages of schools policies regarding use of cell phones at schools? THANKS!! ps: wonderful presentation. The very most exciting part was your obvious passion for your work. THANKS!! BillB

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