For several years, states have grappled with the problem of cyberbullying and its sometimes devastating effects. Because cyberbullying often occurs between students, most states have understandably looked to schools to help address the problem. To that end, schools in forty-six states have the authority to intervene when students engage in cyberbullying. This solution seems all to the good unless a close examination of the cyberbullying laws and their implications is made. This Article explores some of the problematic implications of the cyberbullying laws. More specifically, it focuses on how the cyberbullying laws allow schools unprecedented surveillance authority over students. This authority stands in notably stark contrast to the constraints on government authority in other contexts, including police authority to search cell phones. In June 2014, the Supreme Court recognized in Riley v. California that police searches of cell phones require a warrant because of the particular intrusions into privacy attendant to those searches. While some surveillance authority over students may be warranted, the majority of the cyberbullying laws implicitly give schools unlimited, or nearly unlimited, and unfettered surveillance authority over students' online and electronic activity whenever, wherever, and however it occurs: at home, in bedrooms, at the mall, on personal cell phones, on tablets, or on laptops.
This Article argues that the cyberbullying laws, though well meaning, vastly expand school authority through the broad, if implicit, allowance of surveillance authority over students and implicate privacy harms that are made more acute because the authority lies with schools over students. Although no doctrine yet exists on the limits of school surveillance authority, limits on school authority in other contexts do exist. First and Fourth Amendment doctrine in student-speech and search cases, as well as doctrine on government surveillance more generally, offers some guidance on where the boundaries of school authority lie. The surveillance authority in most cyberbullying laws goes beyond these bounds, indicating that cyberbullying laws expand school authority. To protect students from excessive school surveillance authority and attendant privacy harms, realistic limits need to be imposed on school surveillance authority under the cyberbullying laws both by way of a framework for determining the boundaries of school authority and a cause of action for students. This Article calls for both and draws on the nexus doctrine in First Amendment student-speech cases to develop such a framework.
CONTENTS I. THE CYBERBULLYING LAWS AND THEIR THREE LEVELS OF SCHOOL SURVEILLANCE AUTHORITY A. The Cyberbullying Laws' Implicit Authorization of Surveillance Authority B. Three Levels of Surveillance Authority 1. Authorizing School Surveillance of Student Online and Electronic Activity If It Occurs at School or a Specific School-Related Event or Activity 2. Authorizing School Surveillance of Students' Online and Electronic Activity If It Has a Nexus to School Equipment or Networks 3. Authorizing School Surveillance of Student Electronic Activity Without Any Nexus to the School or School-Related Activities II. AN UNPRECEDENTED EXPANSION OF SCHOOL AUTHORITY A. The Limits of School Authority Under First Amendment Doctrine 1. Schools' Expanded Authority to Regulate Student Speech 2. If Increased School Authority to Regulate Student Speech Is a Guide, Cyberbullying Laws Expand School Authority B. The Limits of School Authority Under Fourth Amendment Doctrine 1. Schools' Authority to Search Students in School 2. If Increased School Authority to Search Student Speech Is a Guide, Cyberbullying Laws Expand School Authority C. School Surveillance Authority and the General Limits on Government Surveillance 1. Government Surveillance Authority Generally 2. How the Cyberbullying Laws Exceed or Nearly Exceed Limits on Government Surveillance Authority III. PRIVACY HARMS, MORE ACUTE IN SCHOOL A. The Kinds of Privacy Implicated 1. Intellectual Privacy 2. Quantitative Privacy B. How the Fact of School Surveillance Authority Exacerbates Privacy Harms 1. Civil Liberties Harms 2. Imbalance in the State-Citizen Power Relationship 3. Incorrect Data IV. MOVING FORWARD: LIMITING SCHOOL SURVEILLANCE AUTHORITY AND PROTECTING STUDENTS FROM PRIVACY HARMS A. Limiting Schools Surveillance Authority: The Nexus Standard Works and Why It Works B. Why Not an Ownership Nexus or the First Amendment Forseeable Disruption Standard C. A Cause of Action V. CONCLUSION INTRODUCTION
Although much attention has deservedly been paid to the problem of cyberbullying, little attention has been paid to some of the far-reaching implications of the anti-cyberbullying laws that collectively represent the response to the problem. This Article explores some of the unexamined and troubling aspects of the cyberbullying laws. Cyberbullying laws, mostly passed as part of states' education codes, prohibit cyberbullying, or bullying by electronic means, and provide schools with the authority to discipline students for it. (1) California enacted one of the first such laws in 2008, (2) and forty-six states and the District of Columbia now have laws prohibiting cyberbullying. (3)
The laws are a response to both the increased attention to the problem of cyberbullying over the last several years and calls-to-action to address it. (4) These calls have been made for good reason; cyberbullying is a prevalent, sometimes tragic, problem. (5) According to one study of twelve-to-seventeen-year-olds, 72 percent of Internet users reported at least one instance of bullying in the immediate prior year. (6) Of those in the study, 51 percent reported experiencing online bullying by other students in their school. (7) Given that this study was conducted in 2008, it seems reasonable to assume that the cyberbullying problem has not decreased with the increasing ubiquity of technology in the last few years, including new apps for texting and otherwise engaging through social media, some of which even provide for anonymous posting. (8)
Cyberbullying is not only a widespread problem but also one that can also have devastating effects. Rebecca Ann Sedwick serves as just one of many tragic examples of the effects of cyberbullying. (9) Rebecca was a twelve-year-old Florida girl who committed suicide in September 2013 by jumping off a platform at an abandoned cement plant after enduring more than a year of bullying by text message and over the Internet. (10)
By prohibiting cyberbullying among students, the cyberbullying laws are undoubtedly aimed at preventing more cases like Rebecca's and curbing the incidences of cyberbullying more generally. In intent, then, the laws heed the calls-to-action that have served as the catalyst for their enactment. Yet the manner in which the laws address the problem of cyberbullying creates its own set of problems. In a majority of states, they arguably provide schools with unlimited or nearly unlimited authority to conduct electronic surveillance of students' online and electronic activity whenever and wherever that activity occurs.
How do the cyberbullying laws provide schools with surveillance authority? By allowing schools the authority to discipline students for cyberbullying, they implicitly provide schools with the authority to ferret out the problem. (11) To determine whether and when students are engaged in cyberbullying, the schools have a few options, but among the most effective and efficient means is developing a system for comprehensively monitoring students' online and electronic activity. (12) Because cyberbullying laws do not prohibit this surveillance, they arguably allow schools to reach into students' lives while they are at home, work, the mall or other non-school places and gather electronic data on the students in the name of learning about cyberbullying activity. The laws expand the proverbial schoolhouse gates to such a degree that, in many cases, schools' authority to conduct surveillance of students is nearly without bounds. (13)
Some schools are beginning to grab this implicit power under the cyberbullying laws to conduct just this level of surveillance. While the exercise of this implicit authority is new, at least a few schools and school districts have now hired (at no small expense) companies to comprehensively monitor the online and electronic activity of all their students at all locations and times. For example, in July 2014, Jackson County School District in North Carolina announced that it is paying a private company, Social Sentinel, $9,500 for one year to monitor the social media...