Legal News

'Sexting' Suit Tests Searches of Student Cell Phones

By Matthew Heller, Editor

The key battle in a Pennsylvania high school student's case against school officials who found nude photos of her in her cell phone may be over whether ?clearly established law? barred them from rummaging through the contents of the device.

The tension between the privacy rights of students and the interest of school administrators in maintaining discipline has been magnified by the prevalence of cell phones on campuses. The case of a Tunkhannock, Pa., student is at least the fourth in which officials allegedly violated the Fourth Amendment by viewing the content of cell phones.

The student, identified only as N.N., equates the search of her phone to illegal intrusions into non-electronic media. ?In today?s age, cellular telephones store large amounts of personal and often very private data, including lists of contacts, text messages, photographs and videos,? she says in a lawsuit filed last week.

?A search of the device,? she continues, ?is akin to browsing through someone?s address and appointment book, opening and reading letters sent by U.S. mail, and rummaging through a family photo album or viewing home videos.?

The principal at Tunkhannock Area High School allegedly searched the images stored in N.N.'s cell phone after a teacher confiscated it while she was making a call. Among those images were nude photos of her which, the suit says, she intended to be seen only ?by herself and, perhaps, her long-time boyfriend.?

Under U.S. Supreme Court precedent, a search of a student by a school official must be ?justified at its inception? and is ?permissible in its scope when the measures adopted are reasonably related 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.? New Jersey v. T.L.O., 469 U.S. 325 (1985).

The Tunkhannock Area School District, however, is likely to argue that principal Gregory Ellsworth is entitled to ?qualified immunity? from N.N.'s suit because ?clearly established law? did not prohibit him from viewing the contents of a student's phone when the student had used the phone in violation of the school's policy.

The qualified immunity defense has been raised in the similar case of a Southaven, Miss., middle-school student identified only as R.W. who was expelled after school officials found what they claimed were photos depicting ?gang-related activity? in his cell phone.

Citing the many functions of today's cell phones, the Desoto County School District argued in a brief:

Technology has probably advanced more rapidly than the jurisprudence applicable thereto, thereby making it even more difficult for school officials to know with precision what they can and cannot do with devices such as R.W.?s cell phone.

Tunkhannock High's policy requires students to turn off and store cell phones in their lockers at all times during the school day. N.N.'s phone was confiscated amid an outbreak of ?sexting? in the district's junior and senior high schools during which school officials turned over the phones of several students to prosecutors.

The ACLU successfully defended those students from the threat of prosecution for possession of child pornography. It is now representing N.N. in her suit along with attorneys from Cozen O'Connor in Philadelphia.

N.N. was suspended for three days after principal Ellsworth "unreasonably and unlawfully searched the images stored on N.N.'s cell phone,? the complaint says.

No appeals court has so far addressed the reasonableness of a search of a student's cell phone. But a federal judge in Harrisburg, Pa., denied qualified immunity to school officials who used a confiscated phone to call other students to see whether those students were violating the school?s cell phone policy.

Under the T.L.O. standard, officials may not search a cell phone ?to find evidence of other students? misconduct,? U.S. District Judge James Knoll Gardner said in Klump v. Nazareth Area Sch. Dist., 425 F.Supp.2d 622 (2006).

Ellsworth's search may also have been ?excessively intrusive.? N.N. notes that he ?would have had to take a minimum of three [electronic] steps in order to view any of the Photographs stored on N.N.?s phone from the cell phone?s main menu screen ... None of the Photographs was visible on the screen of the cell phone.?

In R.W.'s case, the school district says it is entitled to qualified immunity because the photographs recovered in the search of his phone ?were visible simply upon opening of the cell phone and the performance of no other function.?

?Plaintiff has failed to cite any case holding a school official to have violated a student?s rights when a school official 'opened' or received an already 'open' cell phone that was confiscated because of the student?s violation of a school rule prohibiting use of a cell phone at school,? it argues.

Students have also challenged searches of cell phones in cases pending in Kentucky and Texas.

By Matthew Heller
On Point

Full post as published by On Point News on May 26, 2010 (boomark / email).