School Laptops and Spying—and Media

by on February 23, 2010 · 17 comments

Fellow TLFer Julian Sanchez has written (twice) at Cato@Liberty on the big school-using-laptops-to-spy-on-kids case.

Indulging my contrarian habit, I’m taking a little bit of a different view, though not necessarily an inconsistent one. While it seems error to me that the school district issued laptops with a potentially invasive security system, failing to fully inform parents, I think a lot more facts have to come out before we reach legal conclusions.

I started to feel some contrary comin’ on when I read the lengthy commentary of a parent at the school, posted on a privacy colleague’s Facebook wall. Among other things, she said:

The minor in question is a truly bad kid. [cites supporting facts] He had broken two laptop computers and had been issued a loaner computer with the explicit instructions not to take it off school property. It disappeared from the school and when questioned he told the school it had been stolen from him. There is quite a bit of theft and laptops had been a target. The kids seemed to know about the security system in place, I didn’t know about it which I think was wrong — the school has apologized for this. The school activated the security system realized the computer was in use and the webcam took a still shot. The minor in question was sitting in front of the webcam, the rumor is with drugs. The photo was sent to the police which apparently was standard procedure for stolen property and not related to anything else.

Maybe the “drugs” were Mike & Ike’s candies. The plaintiff’s lawyer says so. (Consider the veracity of a kid explaining things to his parents and their counsel, though, and of a trial lawyer seeking to lead a class action.)

Sugar pills or not, if the laptop is AWOL from school—presumptively stolen—I don’t see that it would be unreasonable to use the security system to discover its location, and the camera to capture images of who is using it. If there are statutes that would prevent that, I think a court would find a way to avoid applying them, be it on the theory that the putative thief assumed the risk of being surveilled, unclean hands, or some other basis.

The reporting and commentary has been a little overwrought. Better facts will determine what law should apply. Parents at the school have started a Facebook group to discuss this and share the rest of the story given that the school district has, well, lawyered up.

I tipped a reporter at an outlet I respect about this parent’s version of events. The reporter was alternately dismissive of sources that weren’t “official” and highly defensive when I suggested that her writing and reporting appeared to be preserving controversy rather than getting to the bottom of things. So much for relying on media—even new media—for getting information out.

Maybe spun-up outrage will cause better policies in this area than would otherwise result. Maybe we’ll learn that the security system was used for routine, inappropriate spying on kids. But as a legal case, there’s a lot more to be learned before we should draw conclusions.

  • http://www.mcgath.com/ GaryM

    Let's assume that the laptop was erroneously reported missing, and that for some reason (legal advice, perhaps?) the school district has refrained from mentioning this to the media. Let's also assume that the teacher actually did call the student in for an unrelated action that was discovered while conducting a search for the “missing” machine. That remains unjustified. The school, having verified that the laptop was in the possession of the student to whom it was assigned, should have closed the matter immediately, instead of using it as an opportunity to play drug cop.

    Even if it had closed the case, the school's policy cannot be justified. Assuming everything happened as you hypothesize, that shows the school sometimes erroneously activated its surveillance technology. The people to whom the laptops were given were not notified (or as the school puts it, not “explicitly” notified) that this could be done. That constitutes a warrantless search of a home by people who are not officers of the law.

    The notion that the students to whom the laptops were assigned “assumed the risk of being surveilled [sic]” when they were not even notified of the policy is completely unsupportable.

    Perhaps this particular student is a “truly bad kid.” So what? The Fourth Amendment doesn't apply just to good little boys. His character is irrelevant to the issue, and your raising it amounts to an argumentum ad hominem.

  • http://www.juliansanchez.com/ Julian Sanchez

    We've already been going back and forth on this via email, but here's my quick take:
    The very strong presumption is that any kind of state surveillance activity that gathers information about the interior of a private home, unless it would have been detectable externally from beyond the curtilage of the home, requires a warrant. (See Kyllo, Karo, etc.) Whether the surveillance is intended to gather evidence of laptop theft or drug use or any other crime is irrelevant.

  • http://www.cato.org/ Jim Harper

    More than anything, GaryM, your comment illustrates the importance of learning the facts before drawing legal conclusions.

    If you think my surmise about what courts would do is “completely unsupportable,” you must not have read many cases dealing with search incident to arrest or with vehicles. Courts find support for a lot of things you wouldn't expect or like.

    If you're troubled by my inclusion of the mother's opinion (“truly bad kid”), thank me for excluding the evidence she gives to support it. The relevant facts she states are that the kid had taken the laptop off school grounds contrary to his instructions and lied to school administrators about it: an embezzlement.

    (Nice gotcha: “surveil” is not yet a verb. I should have said “made subject to surveillance”.)

    Without deciding what happened factually, let's talk about the policy for when a laptop goes missing. Who bears the risk that turning on the security will reveal details inside the home: the holder of the laptop or the school? If you say the school, then you're saying that schools can't look for laptops that go missing. The risk of liability is too high. “Issuing” laptops to students becomes “giving” laptops to students.

    This is a (mostly) separate issue from notification to parents and students, about which I said the school appears to have been in error. I just wouldn't get too het up about a clear or egregious constitutional violation before knowing what happened.

  • http://www.cato.org/ Jim Harper

    And I think it's a good bet that the presumption is overcome when a person residing there brings a stolen sensor into the home.

  • http://www.juliansanchez.com/ Julian Sanchez

    But that begs the question, doesn't it? Was it actually stolen? Is it at the residence of the person who stole it? In some of the previous instances where they used this feature, it turned out they weren't. If in the instance there really is probable cause to think that evidence of the theft of the laptop will be found in the place where the laptop is, congratulations, you've got the predicate for a warrant.

  • http://www.cato.org/ Jim Harper

    Of course it does! As I wrote above, I think a court would find, when a school has lost a laptop and believes it stolen, that the school could go looking for it without bearing the risk of violating the Fourth Amendment. If the laptop turns out to be in somebody's home, and the looking for it reveals some additional wrongdoing, that's going to be tough. That's my surmise about how a court would look at it.

    It might be nice if Fourth Amendment doctrine didn't include “plain view” and related seepage, but right now if the police are somewhere for one reason (in a home chasing a thief – exigency) they are allowed to notice what they see there (a counterfeiting operation).

  • http://www.juliansanchez.com/ Julian Sanchez

    You keep saying what you think a court would find; HOW could they possibly find this? What case law supports this novel theory that suspicion that property is stolen, subject to no independent oversight whatever, somehow entitles people to go digging around in private homes looking for it? The “plain view” stuff would be relevant if the argument were about whether evidence of drug possession discovered during a legitimate stolen-property sweep would be admissible. But the question is about the legitimacy of turning the camera on in the first instance. Are you trying to argue that “plain view” removes considerations of ancillary exposure from the analysis of whether the initial intrusion is allowed? Because that's, you know, clearly wrong.

  • http://www.cato.org/ Jim Harper

    That I know of there's no case on point. So I went to the Fourth Amendment reasonableness standard: “I don’t see that it would be unreasonable to use the security system to discover its location, and the camera to capture images of who is using it.” From there, it's a short extension of plain view: If government agents are legally and justifiably looking in a place and find some unrelated law violation, they're allowed to take cognizance of it.

    If you could restate this question, I don't think I understand it: “Are you trying to argue that 'plain view' removes considerations of ancillary exposure from the analysis of whether the initial intrusion is allowed?”

  • http://www.juliansanchez.com/ Julian Sanchez

    So, what I mean is that there are two questions. The first is whether the activation of the camera without notice in a private home is an illegal search. The second question is: Supposing the activation of the camera for property-protection purposes is reasonable, what about other information (like evidence of drug use) that might be revealed as a result? IF you assume that the initial activation in the home is kosher, then I agree that the other stuff exposed is admissible under the plain view standard. What I'm pushing back on is the implication—and maybe I've read you wrongly—that the plain view doctrine means that the risk of exposing ancillary private information isn't relevant to the initial determination of whether the activation of the camera is an impermissible search. That surely can't be right. Having settled reasonableness of the surveillance, anything it captures is covered by “plain view”—but the risk of broad capture is clearly relevant to the reasonableness analysis.

    Consider a stop-and-frisk. Now, it's true that if, instead of performing a pat-down, police were to employ high tech X-ray specs to see through a suspect's clothing, anything they observed would be in plain view. But it doesn't follow that we ignore the intrusiveness of that method of search when assessing whether the use of the X-ray specs (as opposed to a pat down) is more intrusive. On the contrary, the fact that this method exposes so much to “plain view”—and much that would be irrelevant to the compelling interest in safety that undergirds the limited Terry exception—is precisely the reason a court would probably (correctly!) reject the use of such an intrusive method. I may be mistaken about what you're arguing, but it sounds to me like you're invoking plain view in this somewhat circular way so that the intrusiveness question drops out of the initial reasonableness analysis.

  • http://www.cato.org/ Jim Harper

    I think the risk of ancillary information being discovered in plain view can affect the original reasonableness question – that's why the home has generally been treated as more protected – but I don't think it changes the balance here.

    You seem also to be asking, though, whether that means law enforcement can look using methods beyond what they need. If cops run into a home chasing a fleeing robbery suspect (the exigency exception to the Fourth Amendment warrant requirement), can they turn on their magical remote hard disc scanner to determine whether a computer in the home contains child pornography? There I would say no. That's not “plain view” (or “plain feel” or “plain remote sensing”…)

    You would argue, I presume – or maybe you already did somewhere – that the school should locate the laptop through IP address and geolocation, minimizing the risk of capturing images from inside the home. I think that if they are looking for a lost laptop and suspecting that it's stolen, seeing who has it – capturing the visual identifiers of the likely thief – is within the scope of reasonable investigation. They don't know until they capture imagery – and maybe not even then – what kind of structure the laptop is within.

  • http://www.cato.org/ Jim Harper

    Of course it does! As I wrote above, I think a court would find, when a school has lost a laptop and believes it stolen, that the school could go looking for it without bearing the risk of violating the Fourth Amendment. If the laptop turns out to be in somebody's home, and the looking for it reveals some additional wrongdoing, that's going to be tough. That's my surmise about how a court would look at it.

    It might be nice if Fourth Amendment doctrine didn't include “plain view” and related seepage, but right now if the police are somewhere for one reason (in a home chasing a thief – exigency) they are allowed to notice what they see there (a counterfeiting operation).

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  • http://www.juliansanchez.com/ Julian Sanchez

    You keep saying what you think a court would find; HOW could they possibly find this? What case law supports this novel theory that suspicion that property is stolen, subject to no independent oversight whatever, somehow entitles people to go digging around in private homes looking for it? The “plain view” stuff would be relevant if the argument were about whether evidence of drug possession discovered during a legitimate stolen-property sweep would be admissible. But the question is about the legitimacy of turning the camera on in the first instance. Are you trying to argue that “plain view” removes considerations of ancillary exposure from the analysis of whether the initial intrusion is allowed? Because that's, you know, clearly wrong.

  • http://www.cato.org/ Jim Harper

    That I know of there's no case on point. So I went to the Fourth Amendment reasonableness standard: “I don’t see that it would be unreasonable to use the security system to discover its location, and the camera to capture images of who is using it.” From there, it's a short extension of plain view: If government agents are legally and justifiably looking in a place and find some unrelated law violation, they're allowed to take cognizance of it.

    If you could restate this question, I don't think I understand it: “Are you trying to argue that 'plain view' removes considerations of ancillary exposure from the analysis of whether the initial intrusion is allowed?”

  • http://www.juliansanchez.com/ Julian Sanchez

    So, what I mean is that there are two questions. The first is whether the activation of the camera without notice in a private home is an illegal search. The second question is: Supposing the activation of the camera for property-protection purposes is reasonable, what about other information (like evidence of drug use) that might be revealed as a result? IF you assume that the initial activation in the home is kosher, then I agree that the other stuff exposed is admissible under the plain view standard. What I'm pushing back on is the implication—and maybe I've read you wrongly—that the plain view doctrine means that the risk of exposing ancillary private information isn't relevant to the initial determination of whether the activation of the camera is an impermissible search. That surely can't be right. Having settled reasonableness of the surveillance, anything it captures is covered by “plain view”—but the risk of broad capture is clearly relevant to the reasonableness analysis.

    Consider a stop-and-frisk. Now, it's true that if, instead of performing a pat-down, police were to employ high tech X-ray specs to see through a suspect's clothing, anything they observed would be in plain view. But it doesn't follow that we ignore the intrusiveness of that method of search when assessing whether the use of the X-ray specs (as opposed to a pat down) is more intrusive. On the contrary, the fact that this method exposes so much to “plain view”—and much that would be irrelevant to the compelling interest in safety that undergirds the limited Terry exception—is precisely the reason a court would probably (correctly!) reject the use of such an intrusive method. I may be mistaken about what you're arguing, but it sounds to me like you're invoking plain view in this somewhat circular way so that the intrusiveness question drops out of the initial reasonableness analysis.

  • http://www.cato.org/ Jim Harper

    I think the risk of ancillary information being discovered in plain view can affect the original reasonableness question – that's why the home has generally been treated as more protected – but I don't think it changes the balance here.

    You seem also to be asking, though, whether that means law enforcement can look using methods beyond what they need. If cops run into a home chasing a fleeing robbery suspect (the exigency exception to the Fourth Amendment warrant requirement), can they turn on their magical remote hard disc scanner to determine whether a computer in the home contains child pornography? There I would say no. That's not “plain view” (or “plain feel” or “plain remote sensing”…)

    You would argue, I presume – or maybe you already did somewhere – that the school should locate the laptop through IP address and geolocation, minimizing the risk of capturing images from inside the home. I think that if they are looking for a lost laptop and suspecting that it's stolen, seeing who has it – capturing the visual identifiers of the likely thief – is within the scope of reasonable investigation. They don't know until they capture imagery – and maybe not even then – what kind of structure the laptop is within.

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