Computers, Privacy & the Constitution

Lessons from the Classroom: 4th Amendment

-- By KayalPillay - 8 May 2022

School is a microcosm of society. In principle, the Constitution applies with equal force to minors.1? In practice however, children have less means to bring constitutional challenges and this might lead to a free-er trampling of their rights. Looking at what is happening in public schools provides valuable insights about the direction society is heading towards, especially if nothing is done to divert that path.

Current state of 4th amendment rights

The 4th amendment applies to public school officials as “[i]n carry[ing] out searches and other disciplinary functions pursuant to [school disciplinary policies], school officials act as representatives of the State…”New Jersey v. T.L.O., 469 U.S. 325 (1985) (“TLO”) (Majority). Courts have gradually narrowed students’ 4th amendments rights within such spaces,2? and this poses even greater risk once technology comes into play.

Schools are permitted to conduct warrantless searches as long as, at its inception there are reasonable grounds for suspecting that the search would show evidence of a violation of the law or a school rule and the scope of the search was reasonably related to the circumstances justifying intervention in the first place. TLO3?

The key takeaway however, is that the TLO standard is already a relaxed application of the 4th amendment.

Concurrently, it is well-recognised that the law tends to lag behind technological advancements. These two issues come to a head when looking at Education Technology. Ed.Tech. penetration rates in the U.S. are so high that in 2014, a third of U.S. students use school-issued mobile devices. Technology provides these public schools with an unparalleled opportunity to collect more student data.

The problem with Ed.Tech.

Subject-matter expertise is lacking. School librarians are “trained to work with ed tech providers and think critically about their services”. However, they are not necessarily involved in contract negotiations with such providers. Simultaneously, the education representatives who are at the table do not have the same nuanced view of privacy. As such, while the relevant expertise to evaluate edtech products exists in schools, there is a mismatch in resource allocation such that this expertise is not being effectively utilised.

Defaults framed in favour of data collection behemoths. Several schools are issuing kids with Chromebooks and using Google’s education platforms. However, the default setting is that “Chrome Sync” is turned on – i.e., not only is private information on browsing habits etc. stored locally on the device, it is also synced to the cloud and Google can freely collect this information. Behavioural economics has long documented the power of default settings and the chances that such settings would remain the chosen one in a situation.

“Free” tech and a lack of resources to pursue alternatives. Marketing itself as free tools, edtech ultimately serves as another means for collecting user data – except that now, the data is being collected from minors who are being handed these devices from school. Further, “Creating a granular opt-out structure and non-tech alternatives for students does put extra demands on staff across the district”. Even where staff were inclined to look into “smaller companies with better privacy practices”, wider practical considerations had to take priority and the effective choices remained as Apple, Microsoft and Google.

The TLO standard only becomes more worrisome with the blurred line between in and out of school. TLO builds some implicit temporal limit into “under their authority” – kids go back at end of school day. However, now, technology removes the temporal aspect. Does this mean teachers have authority over their students’ out of school activities? (e.g. tweet posted at home, but accessible during school hours). The writing on the wall might say yes, seeing how the Supreme Court already conceives of instances where schools can regulate off-campus speech. Mahanoy Area School District v. B.L., 594 U.S. _ (2021).

Can we resolve it?

There are several legal frameworks in place, from the 4th amendment to the Family Educational Rights and Privacy Act (FERPA) and the Children’s Online Privacy Protection Act (COPPA). Nevertheless, due to the general tendency to lag behind technological advancements, this essay analyses a particular solution increasingly foisted upon tech-intensive issues – self-regulation.

The industry developed a Student Privacy Pledge in 2014 signed by over 300 companies. However, research into some of the signatories’ policies revealed that at least 7 of the 8 companies studied “may be violating some aspect of the Pledge”, with Apple potentially being the worst offender. Notably, the study found that two major companies (Facebook and Pearson) who had not signed the Pledge at the material time were not noticeably less compliant with the Pledge. Nevertheless, the Pledge signatories used the fact that they were signatories as a selling tool, such as by advertising it on the company page.

Why then are companies to eager to tout the Pledge and self-regulation? The answer can be gleaned from similar developments in India – the pervasive worry by edtech that if they do not make some attempt at self-regulation, strict norms by the government may enter the scene. However, the brutal reality is that while these platforms might have the resources and technical expertise to govern themselves, they are privately-owned companies that do not answer to the people. The court of public opinion is not a sufficient replacement for the democratic process, and a regulatory body to ensure compliance is likely to see higher levels of adherence.

The trend observed even in just this narrow area calls out for our attention and action in preserving our fundamental liberties. To the extent we are worried about what this means for the future, an argument raised by New Jersey in TLO does not portend well. The State argued that “because of the pervasive supervision to which children in the schools are necessarily subject, a child has virtually no legitimate expectation of privacy in articles of personal property "unnecessarily" carried into a school.”. Thus, as we sit today in heavily surveilled classrooms without protest, we are actively eroding what reasonable expectations are. Drawing a parallel to a conscientious objector in customary international law, merely objecting may not change things, but the very act might prevent the active worsening of our rights.

(995 words excluding case citations) (Manickamalar Kayalvizhi Pillay)

1? : Barring of course age-restricted rights.

2? : This essay focuses on public schools alone, and does not touch on private schools, private security forces, guards etc.

3? : While drug-testing as a condition of participation in school extracurriculars has been upheld in Vernonia School District 47J v. Acton, 515 U.S. 646 (1995) and Board of Education v. Earls, 536 U.S. 822 (2002), school searches more generally would be permissible only when they are “not excessively intrusive in light of the age and sex of the student and the nature of the infraction”. Safford Unified School District v. Redding, 557 U.S. 364 (2009).

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r3 - 09 May 2022 - 04:30:31 - KayalPillay
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