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Anita Ramasastry

A Public School Allegedly Spies on Students By Using Webcams on Laptops: Is Such Surveillance Legal?


Tuesday, March 9, 2010

Recently, a high school student and his family sued his public high school, claiming that it had violated their privacy. They allege that the school had provided students with laptops; remotely activated webcams that it had installed on the laptops; and used the webcams to remotely view students.

In this column, I will explain why, if the student's allegations are accurate, the school's actions not only are a bad move ethically, but also implicate students' constitutional rights.

The Facts of the Case

The public school at issue is Harriton High School, located in the Lower Merion School District, near Philadelphia. The school had provided up to 1,800 students with school-issued laptops. It claimed that it did so simply to allow students to work on school projects and to use the same software that they use at school on a 24/7 basis, both at school and at home. However, each laptop included a webcam that could be remotely activated by school staff and administrators, and used to view students. (The school has since disabled the webcams.)

The school district has never disputed the fact that the webcams exist, or the fact that they could be activated remotely. But it claims there is a good reason for these features: According to a letter from the district superintendent that has been posted online, the remotely-activated webcams are security features intended to track lost, stolen, or missing laptops. The school reports that it has used the features approximately 42 times for this purpose, and claims that it has never used them to spy on students. According to the letter, "Upon a report of a suspected lost, stolen or missing laptop, the [webcam] feature would be activated by the District's security and technology departments. The security feature's capabilities were limited to taking a still image of the operator and the operator's screen."

But one student–Blake Robbins–claims that the webcams were put to another use as well. Blake alleges that an assistant principal approached him at school; told him he'd been caught engaging in some kind of "improper behavior" in his home; and told him that the laptop's webcam had captured an image of him while engaged in that activity.

Blake's parents state that they never knew that his computer's webcam could be accessed remotely and used to monitor his extracurricular activity. However, the school district claims that each family was asked to sign an "acceptable use" agreement before their child received a laptop, and the agreement apparently did make reference to the fact that the school could "monitor" the hardware. Still, the details of what form such monitoring would take were apparently not spelled out. Thus, it is possible that parents might have assumed that, for instance, a GPS locational device would be installed on the computer – which would be quite different from a webcam that can be turned on and used to view what a student is doing in real time.

Privacy Violations: An Unlawful Warrantless Search?

Let's assume for a moment that Blake and his family's allegations are accurate. If the school staff did indeed turn on the webcam feature and use it to capture images of Blake – and perhaps other students as well – without their or their parents' prior notice and consent, then that would seem to constitute an unlawful search, in violation of the Fourth Amendment.

A public school is a government actor, so constitutional rights surely apply here. And the analogies are damning: By comparison, absent some sort of reasonable suspicion, school officials would not be able to enter a student's home surreptitiously, and to view a student without his or her knowledge or consent. Yet that is arguably the equivalent of what is alleged to have occurred here.

If Blake is right in his allegations, then the laptop, with its webcam, acted like a surreptitious principal - sneaking in and monitoring him without his knowledge. What's more, the laptop could also violate the privacy of third parties - including his friends and family. And truly horrifying violations could be imagined as a result of these webcams - such as the viewing of students while they were changing clothes or engaging in other private activities. We have the right to keep private from the government both important facts such as what posters are on our walls and what books are on our bookshelves, and trivial but embarrassing and private facts such as whether, say, we are belching or swearing.

Would this kind of monitoring, done by a public school, be constitutional if parents and students had signed a strong enough waiver? The answer is still likely no. A government actor - and as noted above, that includes a public school - generally cannot condition the receipt of a public benefit on the waiver of a constitutional right such as, here, a Fourth Amendment right. A private school, in contrast, might be able to require parents to agree to such monitoring, as a condition of their children's receiving a laptop.

For now, the school district has agreed not to use the security feature on the laptops, pending the outcome of the current litigation - which may turn into a class action suit. And it's likely that school districts across the nation will be watching this case, as the use of laptops is becoming more and more vital to today's high-school students. Schools should have the ability to retrieve stolen laptops, but with GPS available, it's hard to argue for using a webcam for this purpose instead.

Anita Ramasastry, a FindLaw columnist, is the D. Wayne and Anne Gittinger Professor of Law at the University of Washington School of Law in Seattle and a Director of the Shidler Center for Law, Commerce & Technology. She has previously written on business law, cyberlaw, computer data security issues, and other legal issues for this site, which contains an archive of her columns.

Ramasastry is currently on leave from the University to work for the federal government. The views expressed in this column aresolely those of Ramasastry in her personal capacity anddo not necessarily represent the views of any of her employers, past or present.

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