Pa. school spying case: What's the law?

Lawyers argue over laptop spying, Fourth Amendment, in loco parentis

The suburban Philadelphia school district accused of spying on students through their school-issued laptops doesn't have a legal leg to stand on, the legal director of the American Civil Liberties Union (ACLU) said today.

Another area attorney, however, said the case is not nearly that clear cut.

Last week, Michael and Holly Robbins of Penn Valley, Pa., on behalf of their son Blake, sued Lower Merion School District of Ardmore, Pa., accusing it of spying on students and students' families using the cameras in the MacBook laptops issued to each high school student in the district.

According to the original complaint , Blake Robbins was accused by a Harriton High School assistant principal of "improper behavior in his home" and shown a photograph taken by his laptop as evidence. District officials have said technical staff remotely activated notebook cameras only as part of efforts to recover lost or stolen computers . The Robbins family has denied that Blake's laptop was reported lost or stolen.

The lawsuit accused Lower Merion of violating the federal Electronic Communications Privacy Act (ECPA); other federal and state statues, including the Pennsylvania Wiretapping and Electronic Surveillance Act; and violating Blake Robbins' Fourth Amendment rights.

That last is the crux of the case and its legal implications, Vic Walczak, legal director of the ACLU of Pennsylvania, said in an interview today. "Using the camera to see what's going on in the house, off school property and off school hours -- there's absolutely no way they can do that without consent or a warrant," Walczak said, referring to the Fourth Amendment, which offers protection against searches or seizures of property.

"And forget the law for a moment.... Would anyone allow a school district to install a video camera in a teenager's bedroom? That's ludicrous," said Walczak.

Earlier this week, the Pennsylvania branch of the ACLU asked a federal judge to let it file an amicus curiae , or "friend of the court," brief in support of the Robbins' demand that the school district stop turning on laptop cameras .

The district's practice would be questionable even if it had disclosed the fact that it could turn on the laptops' cameras, Walczak argued. "It has to be informed consent. I find it hard to imagine that any parent could agree to let a school district essentially enter their child's bedroom," he said. "And by informed consent, the school district would have had to say something along the lines of, 'We'll be taking photos when your kid's [masturbating] in his room.' As if a parent would then say, 'Where do I sign? I've always wanted to know what he's doing in there.'"

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A Philadelphia-area attorney who specializes in employer-employee law thinks the lawsuit might not be a slam dunk for the Robbins family. "I don't think this is an open-and-shut case," said Stephen Foxman, a member -- analogous to a partner -- at Eckert Seamans Cherin & Mellott in Philadelphia. "There's definitely a problem from the standpoint of the school district. I can't see any reasonable basis for monitoring with real-time capture of video or audio outside of school hours. But the case does open up significant questions.

"Does the school district have the right, for example, to monitor what goes on with the laptops, at least during school hours?" Foxman asked. "That's what makes this potentially interesting."

Schools, said Foxman, are generally given legal leeway not afforded other organizations, such as a company, because they're acting in loco parentis , or "in the place of a parent."

"A parent who attaches a [monitoring] device to his or her child's computers to, for example, monitor that the child doesn't go to inappropriate [Internet] locations, you would not expect a claim from a child about that to move forward," said Foxman.

Other law that may come into play, said Foxman, related to employers' rights to monitor employees' use of company-provided hardware, including computers and smartphones. "There's a fair amount of law that has generally sided with employers monitoring employee communications," said Foxman. "Courts have generally given employers very, very broad leeway here."

Numerous readers of the stories that Computerworld has published about the Lower Merion case have wondered the same thing.

It may come down to the language in the agreement that students and their parents signed when they were issued the computers, and the fact that the district did not disclose that the MacBooks had been equipped with software that let school employees trigger the camera. "If they had disclosed, there wouldn't be an issue," said Foxman, taking the opposite side of the argument from the ACLU's Walczak.

Lower Merion School District's superintendent has admitted that students and parents were not informed about the spying feature, or the reasons why a laptop's camera might be activated.

"This case has brought into focus a broad set of issues," Foxman maintained. "It's brought into light a continuing problem, as electronic devices become more and more powerful, with more and more capabilities, there have to be lines drawn about their use."

It's becoming more difficult to defend monitoring by businesses -- or school districts -- that issue equipment to their workers or students. "There are some real issues here as these become Swiss Army knives," Foxman concluded. "They're not just used for business purposes, so monitoring can be a real invasion of privacy."

Lower Marion has 30 days to reply to the Robbins' complaint, according to a schedule set Monday by U.S. District Court Judge Jan DuBois.

Gregg Keizer covers Microsoft, security issues, Apple, Web browsers and general technology breaking news for Computerworld. Follow Gregg on Twitter at @gkeizer or subscribe to Gregg's RSS feed . His e-mail address is gkeizer@ix.netcom.com .

Read more about privacy in Computerworld's Privacy Knowledge Center.

This story, "Pa. school spying case: What's the law?" was originally published by Computerworld.

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