By Jessica Kelham-Hohler
Writer, Student Press Law Center
This article was originally published Feb. 15
A new bill could end the protections of the California Electronic Communications Privacy Act for members of education institutions, including students.
Assembly Bill 165 would allow schools to demand that students hand over their cellphone to government officials – not just local police, but deans, principals and campus police, too. This would consequently give these officials the right to search through all electronic communications and obtain access to private social media accounts – all without a warrant.
The bill seeks to exempt county offices of education, school districts, charter schools, and any educational agency acting on their behalf from the limits imposed by the California Electronic Communications Privacy Act (CalECPA).
Enacted Jan. 2016, CalECPA currently prohibits a government official or member of state law enforcement from compelling the production of, or accessing, electronic communications and information without a search warrant or subpoena.
The California Newspaper Publishers Association, which worked on CalECPA, is opposing the bill. Nikki Moore, legal counsel for CNPA, stressed that CalECPA essentially clarified existing law – the Supreme Court case of Riley vs. California stated that a warrant was required to search a person’s cellphone.
“A cellphone can contain the same kind of sensitive information as the papers in someone’s home,” Moore said. “The Fourth Amendment protects against unreasonable search and seizure, and this measure really flies in the face of that protection and the protection that CalECPA provides.”
Moore explained that while the school may take the position that they must act as substitute parents for students and exercise their responsibility to care for students, the Tinker v. Des Moines School District case still protects students’ constitutional rights.
“The Tinker case says that students and teachers don’t shed their rights at the school gate. Essentially this bill is attempting to strip the students and teachers and anyone else on the campus from their right to not be searched without a warrant,” Moore said.
Chris Conley, technology and civil liberties policy attorney at ACLU of Northern California, stressed that this bill would not only impact students.
“This would affect teachers or school employees or even anyone who is a guest at a school event. Anyone acting on behalf of the school can conduct a search, whether it’s a student or someone else,” Conley said.
Journalists are already protected by federal law from most newsroom searches and seizures by government officials. The Privacy Protection Act prevents any government officer or employee from searching newsrooms and seizing work product or documentary material during a criminal investigation without a court order. California’s state law extends this protection beyond searches related to criminal investigations. While AB 165 cannot overturn the federal protection, there are concerns that it could cause school or campus police to believe that there is no longer such protection, since there has never been an explicit ruling about how this applies to student journalists.
“If you pass this broad exemption, you’ll have school officials and law enforcement officials who believe that those rights do not apply to students, journalists or not,” Moore said.
Conley stressed that student journalists’ privacy are particularly at risk.
“It is certainly a concern, because if you are running a student newspaper that is critical or questioning what the school authorities are doing, that certainly would make you an interesting person to find out more about your life,” Conley said. “It is another population that becomes vulnerable in the wrong situation and should have protections that are clear and written in law and not up for constant arguments that are ultimately, at best, after the fact.”
One of the main justifications for this bill is to help schools combat online bullying and harassment. Moore and Conley counter that currently under CalECPA there are still sufficient means for schools to deal with such cases. Where the case has reached the level of a crime or emergency, a school can get law enforcement involved and obtain a warrant. Where a student is being harassed or bullied, they also have the right to voluntarily show the communication from their phone to a school official or law enforcement officer.
Conley explained that while the case becomes slightly more nuanced where district-owned devices are involved, students still have their fundamental expectation of privacy.
“When you give a student a device for their use, including at home and outside of educational purposes, then there is an expectation that what the student is going to do is not constantly subject to scrutiny,” Conley said.
While the ACLU of Northern California has not taken an official position on the bill at this time, Conley stressed that they were particularly concerned with the proposed bill given the national climate.
“From our perspective this is precisely the wrong time to be rolling back privacy protections,” Conley said. “With some of the recent executive orders and other actions by this new administration, they have good reason to want privacy protections.”