LibertyVoice

Here’s a jaw-dropping accusation of privacy invasion, and another example of some major gaps in privacy law. A complaint filed in federal court in Philadelphia claims that officials at suburban Harriton High School remotely turned on the cameras in laptops issued to students and captured images, including at their homes. The school denies the allegations in a written statement:

The tracking-security feature was limited to taking a still image of the operator and the operator’s screen. This feature has only been used for the limited purpose of locating a lost, stolen or missing laptop. The District has not used the tracking feature or web cam for any other purpose or in any other manner whatsoever.

Maybe, but the complaint by plaintiff Blake Robbins, 15, states that a Harriton assistant principal accused him of being “engaged in improper behavior in his home, and cited as evidence a photograph from the Webcam embedded in minor Plaintiff’s personal laptop issued by the School District.”

Obviously there are many unanswered factual questions here. For starters: what improper behavior? Was it school-related? How does the school district square its denial with the reported earlier statement of the assistant principal? Is it true, as the complaint alleges, that there was never any warning given to students about the capacity to turn on the camera? Does the school own the laptops, and do students or parents sign anything in connection with their use of the computers?

But the legal questions are at least as numerous, and perhaps more troubling. The complaint includes seven “counts” — essentially, seven different laws allegedly broken by the school district. By my count, only two of the seven are likely to be any good. And one of those two works only because this is a public school and not a private entity.

Three counts invoke federal and state wiretapping statutes (Counts I, III, and VI if you’re scoring at home). But based on the allegations it seems clear that turning on the camera falls outside of these laws. Silent video surveillance is not “oral” and not a “communication,” which puts it outside of the scope of the Wiretap Act, the Stored Communications Act, and presumably state laws based on these statutes. (see, e.g., United States v. Mesa-Rincon.

The plaintiff also relied on the Computer Fraud and Abuse Act (Count II), but that depends on “unauthorized access.” I would need to know more facts here, but since the school presumably owns the computer and probably reserved some general rights in the paperwork when it gave those computers to students, there is a good chance access to your own computer may be authorized, so that this allegation also would be a non-starter.

One of the two claims that might work is an argument under Pennsylvania common law that the surveillance was a tortious invasion of privacy. This might be all right under the “intrusion on seclusion” branch of tort law, but there could be arguments about damages, consent and waiver, and other complications.

Fortunately, courts (like Mesa-Rincon) have relied on constitutional protections of the Fourth Amendment to craft rules against governmental video surveillance, especially in the home. Count IV brings this claim under a law called Section 1983 that allows suits against the government for violations of constitutional rights. (Count V brings a claim directly under the Fourth Amendment, which is not permitted.) That seems like the best bet for this lawsuit. Students’ Fourth Amendment rights as against schools are significantly less robust than adults’ rights against the police, but this outragous case seems to go a good bit further, like a recent Supreme Court case about school strip searches, described in this news story.

I don’t understand why so much more of the complaint is keyed to the flawed arguments under the surveillance statutes than to the tort and especially the seemingly strong Fourth Amendment claim.

The most important lesson here looks to possible future cases like this one. These issues will come to the fore as cameras in laptops become ubiquitous and as more schools start giving them to students. The Fourth Amendment argument in the Harriton High case works only because it is a public school. The Fourth Amendment, like the rest of the Bill of Rights, only constrains “government actors.” If a private school did the same thing with its laptop program, the student would have only comparatively weak tort law on which to fall back. The same would be true of other private spying, including employers using the cameras to spy on workers, or spouses on one another. In some of those cases I can imagine arguments of implied consent that could vitiate the tort. As cameras proliferate, we need to make some new rules governing their use for spying, right away.