November 2008 - Search and Seizure Issues in the School: Student Expectation of Privacy in Electronic Storage Devices

DUFF, WHITE & TURNER, L.L.C. Attorneys and Counselors at Law

Post Office Box 1486 Columbia, South Carolina 29202 Telephone 803/790-0603 Facsimile 803/790-0605

SCHOOL LAW
“ISSUE OF THE MONTH”
November 2008

Search and Seizure Issues in the School:
Student Expectation of Privacy in Electronic Storage Devices

As technology continues to evolve, students have found it increasingly necessary or desirable to bring to school certain electronic storage devices, such as cell phones, iPods, cameras, and laptops.  An electronic storage device is any item that can record information in the form of text, pictures, and other electronic data.  In balancing the need of students to carry non-contraband technological devices and the duty of schools to maintain a learning environment, many school districts have enacted policies limiting the possession and use of certain devices.  Most school districts, however, have not implemented policies addressing searches of electronic storage devices.

In 1985, the U.S. Supreme Court, in New Jersey v. T.L.O., held that the Fourth Amendment prohibition on unreasonable search and seizures applies to searches by public school officials of students and their possessions.  The Court, attempting to strike a fair balance between students’ privacy interests and school administrators’ need to maintain order, held that student searches must be reasonable.  The Court stated that to determine the reasonableness of a search, two questions must be considered: 1) whether the action was justified at its beginning, and 2) whether the extent of the search as conducted was reasonably related to the circumstances which justified the search in the first place.  In other words, to justify a student search, reasonable grounds must exist for suspecting that the search will turn up evidence that the student has violated or is violating either the law or school policy.  This standard was later codified into South Carolina law under §59-63-1150, which requires that “all searches conducted … must comply fully with the ‘reasonableness standard’ set forth in New Jersey v. T.L.O.”  Recently, students have begun to mount court challenges of school searches of electronic storage devices.

In 2006, a federal court in Pennsylvania applied the T.L.O. reasonableness standard in Klump v. Nazareth Area School District, a case involving a school administrator’s search of a student’s cell phone.  In Klump, a teacher had confiscated a student’s cell phone because he displayed the phone in violation of a school policy that prohibited the display or use of cell phones during instructional time.  Several administrators then searched through the student’s stored text messages, voicemail, and phone number directory to determine if other students were also violating the school’s cell phone policy.  The student filed suit, asserting that these actions constituted an unreasonable search in violation of his Fourth Amendment rights.  The Court found that confiscation of the cell phone was justified for violation of the school’s policy, but concluded that the search of the phone violated the student’s Fourth Amendment rights.  The Court concluded that the district had reasonable suspicion that the display/use policy was violated, but did not have reasonable suspicion that the search of the phone would turn up further evidence of that policy violation, or of any other law or policy violation.

Interestingly, in addition to holding that the district violated the student’s Fourth Amendment rights, the court in Klump found that the district violated the Pennsylvania Wiretap Act by accessing stored voicemail and text messages.  In South Carolina, the authorized and unauthorized interception of wire, electronic, or oral communications is governed by S.C. Code Ann. § 17-30-10.  Under this statute, it is a felony to intentionally intercept, attempt to intercept, or persuade another person to attempt or intercept any “wire, oral or electronic communication.”  An electronic device is defined by statute as any “transfer of signs, signals, writing, images, sounds, data . . . transmitted in whole or in part by . . . other device that affects intrastate, interstate or foreign commerce.”  Although §17-30-10 was enacted in response to the terrorism of 9/11, a court in South Carolina might hold that a district allowing an unreasonable student search of electronic storage devices has not only violated a student’s Fourth Amendment rights but also has committed an unauthorized interception of electronic communications under §17-30-10.

School administrators should examine carefully all of the circumstances surrounding the confiscation and search of student electronic devices. Confiscation of student technological devices is permissible when a student has violated a school policy on use or possession of the device. However, to search the stored electronic communications, an administrator would need to have a reasonable suspicion that another law or school policy has been violated and that search is likely to turn up evidence of that violation. For instance, if an administrator has a reasonable suspicion that a student has used an electronic device to bully other students or has used the device to cheat on a test, confiscation and a search of stored messages would be permissible.  Likewise, if an administrator believes a student is violating a law, such as those covering drug dealing or transmitting lewd photos, confiscation and a search of stored messages also would be permissible.

It is imperative for school districts to have clear policies in place regarding student searches of electronic devices, to assure not only that students and parents are aware of the types of non-contraband items which can be regulated, but also that administrators receive training in making judgments about searching student technological devices. Should you have any questions about your district’s policies or practices related to searches of student technological devices, please feel free to contact this firm.

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