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July 19, 2011

Searching Student Cell Phones

The issue of when officials can search a student's cell phone is an emerging e-discovery issue. This is illustrated in the recent case   N.N. v. Tunkhannock Area School District, Civil Action No. 3:10-CV-1080, United States District Court, M.D. Pennsylvania.

Sexy In this case, a student at Tunkhannock Area High School violated a school policy requiring cell phones to be turned off and stored in lockers during the school day by placing a call from her cell phone while on school property. A teacher confiscated the phone. School officials then examined the contents of the cell phone and discovered what appeared to be inappropriate photographs stored in the phone's memory. 

The phone was turned over to the police. The court opinion states that, “Aside from one photograph taken by a female friend, the photographs were taken by [the student] alone, and were intended for the sole consumption of herself and her long-term boyfriend. The photographs were taken off school property, were saved to the cell phone, were never e-mailed or uploaded to the internet, and were not shared with other students.”

While the police did not seem intent on pursuing charges — a detective allegedly told the student that “had she only waited until her 18th birthday, she could have submitted the photographs directly to Playboy magazine instead of getting in trouble — the District Attorney took the matter more seriously. He wrote a letter to the student threatening to bring child felony pornography charges against unless the student (and some others) completed a re-education course on sexual violence and victimization.

The student filed a lawsuit claiming that the actions of the school, the district attorney and the police violated her First and Fourth Amendment rights. 

The court has a long discussion of prosecutorial and qualified immunity issues. But what is significant from my perspective is that the court will allow the claims that the school, police, and the district attorney illegally seized and searched the student’s phone. 

Expect to see more of these cases. In the Redding case, the Supreme Court held that the strip search of a student to find a prescription drug violated the Fourth Amendment. The court explained that a standard of reasonable suspicion applies to a determination of legality of a school administrator's search of a student, and that any search must be reasonably related to the legitimate school objectives and not excessively intrusive. This means, in plain English, that a school administrator can conduct a limited search when there is a "a moderate chance of finding evidence of wrongdoing."

Under this standard, the school administrators probably can search the contents of a cell phone if there is reason to believe that the phone is used for criminal activity, such as bullying, sexting, or threats to safety. However, like with the strip search case, there is a limit to the actions of school administrators. The nature of the suspected illegal activity — both in terms of threat to student safety and the exact use of the phone — will govern how much of the contents of a cell phone can be examined. In this case, the allegation that the student was placing a call probably cannot justify the review of the photographs on her cell phone.



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