The iPhone 11 – Not your Father’s Flip-Phone
By John M. Sedor of Sedor, Wendlandt, Evans & Filippi, LLC
Part one of a series on Technology and the Law.
“Technology” – the application of scientific knowledge for practical purposes.
A simple and common-sense definition. I remember a technology that was prevalent when I was in school – the mimeograph/ditto machine – that churned out blue ink smeared copies and didn’t generate much controversy or many lawsuits. But today’s technologies seem to be different. What are the technologies impacting schools and what makes them so challenging from a social and legal perspective? Throughout this school year, this Commentary will focus on the legal issues and challenges that technologies present to school districts.
Today’s technology has invaded the educational space, broken down the proverbial schoolhouse gates and streamlined the delivery of data (where there is sufficient bandwidth) almost faster than we might like. And it has happened in the relative blink of an eye. Take the cell phone. First made in 1973, it was 9 inches by 5 inches and weighed over 2 pounds. Not until 1984 did cell phones become commercially available and, originally, were used to actually make phone calls. The so-called “smartphone” became commercially available in 1999. The first iPhone didn’t appear until 2007. That is just 12 years ago – not long at all for a legal system that is not known for speed and uses an analytical process (precedent) that relies on the past.
Since that very first iPhone, courts have struggled with how to deal with smartphones and searches. Long, long ago – in 2008 – the cases dealing with smartphones primarily involved criminal arrests. The courts didn’t know how to categorize these smartphones, so, looking to the past (also called precedent) they considered them to be a “container” – like a wallet, a box or a purse. Because courts previously allowed containers (wallets/boxes/purses) to be searched by law enforcement as part of an arrest, courts allowed the contents (i.e. texts, emails, social media) of smartphones to be routinely searched by police.
Searches by school officials are subject to a lower constitutional threshold than law enforcement as first discussed by the US Supreme Court in T.L.O. in 1985. The standard for searches that school officials must meet is that the search must be (1) reasonable in its scope and (2) based on “reasonable suspicion” that the search will uncover evidence of wrongdoing. Combining the “container” analogy and the lower T.L.O. standard applied to school searches, courts routinely allowed a school official who properly confiscated a smartphone to search its contents.
For example, in one 2010 case (J.W. v. DeSoto County School District), a federal court was faced with a situation where a student (R.W.) was using his phone in violation of a school rule (don’t use your phone in class). R.W’s phone was properly confiscated. The school official concluded that since R.W.’s use of his smartphone violated the school rule, the contents of the “container” (the smartphone) might have evidence of other rule violations. It did. The smartphone had evidence of gang activity and R.W. was expelled. The court concluded that the search of the contents of the smartphone was legal and that “not only was the search in this case not contrary to ‘clearly established’ law; that law is actually quite favorable to the individual defendants in this case.” The court also pointed out that “a school teacher lacking legal training should not be forced to defend himself at trial for his split-second decision in this regard.”
This “container” analogy has not survived. Evaluating this new technology (smartphones) by comparing it with old technologies (boxes, wallets, purses) didn’t work. Smart phones are something more than a container. Smartphones hold so much information about who we are and what we do and how we think and … who we are, that they are or have become an appendage or an extension of our personal selves. Courts are now catching up.
In a 2014 US Supreme Court case (Riley v California), Riley was stopped for driving with expired registration tags. Incident to the arrest, his smartphone was seized, and California law enforcement went through the phone finding evidence of gang participation and shootings. Riley was arrested for the shooting, attempted murder, and assault with a semiautomatic firearm … and driving with an expired registration. Riley was convicted and appealed all the way to the US Supreme Court. The Court unanimously overturned his conviction on the basis that the search of the smartphone was unconstitutional. For the first time, the Court addressed the nature of a smartphone: “Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person. The term ‘cell phone’ is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used a telephone. They could just as easily be called cameras, video players, Rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps or newspapers.” The Court held that smartphones would no longer be considered “containers” and that in most cases, the contents of a smartphone will not be able to be searched without a warrant.
What is the lesson for schools? Confiscating a smartphone that is being used in violation of a school or class rule is still appropriate. But school officials should be cautious of searching the contents of the smartphone unless the T.L.O. standard is clearly met to justify the second level search – the search of the contents of the phone. Thus, in Gallimore v. Henrico County School Board, a federal court found that a school official’s concern that a student had illegal drugs (marijuana) justified a pat down of a student and the search of his backpack, shoes, pockets, a Vaseline jar and a sandwich wrapper under T.L.O. The search of the smartphone, however, was not justified. The school official who searched the smartphone was not entitled to qualified immunity. And when that immunity is lost, it usually costs the school district money.
Welcome to a world of new and challenging technology and a school year filled with articles about technology and the law! This is not your father’s flip phone and ditto machine technology!
More from Sedor, Wendlandt, Evans & Filippi, LLC:
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The views expressed here are the writer’s and are not necessarily endorsed by the Association of Alaska School Boards. AASB welcomes diverse perspectives and civil discourse. To submit a Guest Column for consideration, see our Guest Column Guidelines and email your 400-1000 word submission HERE.