A. James Spung, from Backpacks to Blackberries: (re)examining New Jersey v. T.l.o. in the Age of the Cell Phone

• Jurisdiction: United States,Federal
• Publication year: 2011
• Citation: Vol. 61 No. 1

FROM BACKPACKS TO BLACKBERRIES: (RE)EXAMINING

NEW JERSEY V. T.L.O. IN THE AGE OF THE CELL PHONE†

ABSTRACT

When the U.S. Supreme Court decided New Jersey v. T.L.O., cellular phones had yet to emerge in American society and public schools. Contemplating a world of physical possessions and tangible objects, the

1. Court determined that public school students may expect only a

   minimal amount of privacy in their backpacks, purses, and other belongings while at school. The Court used these diminished privacy expectations to establish a heavily reduced standard of Fourth Amendment protection against unreasonable searches conducted by teachers and administrators.

   
   

   The pervasiveness of cell phones in today’s schools, however, has arguably swayed the balance. As students, like the rest of society, increasingly rely on their cell phones for a vast range of private purposes, they have demanded a reevaluation of the heavily abridged safeguards the T.L.O. Court prescribed. Calls for heightened Fourth Amendment protection in students’ cell phones arise in an era when school authorities often search the stored contents on these phones (including call histories, text messages, photos, and information accessed on the Internet) in the name of maintaining an orderly educational environment. The mounting uncertainty over the privacy students can expect in their cell phones against school officials’ intrusions has left schools vulnerable to widespread opposition and rights-based litigation. Students often reflexively believe that they should have more privacy rights in their cell phones than the established standard provides. This Comment develops a legal argument that lends support to this intuition.

   
   

   With an eye toward respecting students’ heightened expectations of privacy in their cell phones, this Comment advances the novel argument that the capabilities, characteristics, and uses of these devices have confounded the justification for reduced Fourth Amendment standards upon which the T.L.O. Court relied. First, the capabilities of cell phones and the uses to which students put them demand the recognition of heightened privacy expectations in these devices. Moreover, the complexity of cell phones increases the degree

   
   

   † This Comment received the 2011 Mary Laura “Chee” Davis Award for Writing Excellence.

   of intrusion students are forced to accept upon any search of their contents, reaffirming the need for greater safeguards to respect students’ privacy interests. Finally, school officials do not have a sufficient interest to justify these extensive intrusions upon students’ heightened expectations of privacy without more protective Fourth Amendment safeguards in place. In light of these deficiencies, this Comment proposes a number of heightened measures, including the reinstatement of probable cause and the requirement of parental notice and consent, that may feasibly be implemented in the school environment to better protect students’ privacy rights in a new frontier of the Fourth Amendment’s application to public schools.

   INTRODUCTION 114

   1. THE PRESENCE AND PROBLEMS OF CELL PHONES IN PUBLIC SCHOOLS 115

      1. The Uses and Ubiquity of Cell Phones in Schools 116

      2. The Rise of Content Searches by School Officials: Cyberbullying and Other Harms 118

      3. A Model Scenario 122

   2. THE LEGAL LANDSCAPE AND A NEW FRONTIER FOR THE FOURTH AMENDMENT IN SCHOOLS 124

      1. New Jersey v. T.L.O.: A Balancing Act and a Standard for Public Schools 127

      2. The Balancing Act Continued 129

      3. The Puzzling Question of Cell Phones and the Fourth Amendment 132

   3. QUESTIONING THE T.L.O. EXCEPTION IN THE CONTEXT OF CELL PHONES 134

      1. The Case for Heightened Privacy Expectations in Cell Phones

         in Public Schools 137

         1. The Capabilities and Characteristics of Students’ Cell Phones 138

         2. Cell Phones, Protected Speech, and Heightened Privacy Expectations 140

         3. The Question of School Regulation: Phone Bans and the Expectation of Privacy 144

         4. Distinguishing Diaries 146

      2. The Impossibility of a Reasonable Scope 147

      3. Schools’ Insufficient Interests to Justify Cell Phone Searches ... 149

   4. PROTECTING STUDENTS’ RIGHTS: THE SEARCH FOR FEASIBLE SOLUTIONS 152

      1. Reinstating the Warrant Requirement: An Infeasible Solution .. 152

      2. Requiring Probable Cause in Cell Phone Searches 153

      3. State Legislatures and School Boards 155

      4. The Requirement of Parental Consent 156

CONCLUSION 158

INTRODUCTION

Writing in 1985, the U.S. Supreme Court could not have conceived of the characteristics and capabilities of cellular phones when it diminished the standard of Fourth Amendment protection public school students could expect in their belongings. In New Jersey v. T.L.O., the Court abrogated the Fourth Amendment’s typical requirement that a government official obtain a warrant justified by probable cause before engaging in a search of an individual’s person or belongings, holding instead that a public school official need only “reasonable suspicion” to justify an intrusion into a student’s purse or

backpack.1 The Court’s reasoning, however, contemplates a bygone era that

predated the ubiquity of increasingly sophisticated cell phones in the school environment.

The tremendous features and functions of these devices—and the personal and extensive uses to which students put them—have arguably confounded the balance T.L.O. struck between students’ privacy expectations and school officials’ disciplinary needs. The emergence of the cell phone has accordingly given rise to calls for heightened safeguards to protect students’ (and their families’) Fourth Amendment rights in their phones against a T.L.O. standard

that may inadequately reflect these interests.2 Moreover, as students balk at the

low safeguards, school officials face legal uncertainty (and potential liability) in a crucial, modern area of school authority.3 The need to clarify a heightened standard is particularly pressing in light of public schools’ needs to respond to a number of cell-phone-related issues, including the troubling modern

phenomenon of “cyberbullying,” an umbrella term encompassing a host of methods by which students harm each other emotionally and relationally through their cell phones and other electronic devices.4

1 469 U.S. 325, 339–45 (1985).

1. See, e.g., Katherine Leal Unmuth, Phone Search by High School Angers Parent, DALL. MORNING NEWS, Aug. 2, 2010, at B1; Suzanne Ito, Pa. School District Pays $33,000 to Settle Cell Phone Search Lawsuit, ACLU BLOG OF RIGHTS (Sept. 17, 2010, 3:34 PM), http://www.aclu.org/blog/free-speech/pa-school- district-pays-33000-settle-cell-phone-search-lawsuit; Tara Parker-Pope, Should Schools Search Cellphones?,

   N.Y. TIMES WELL BLOG (July 6, 2010, 10:25 AM), http://well.blogs.nytimes.com/2010/07/06/should-schools- search-cellphones/; Jake Whittenberg, Schools’ Anti-Bullying Plan Includes Cell Phone Search, KING5.COM (Aug. 23, 2010, 5:39 PM), http://www.king5.com/news/education/New-anti-bullying-plan-includes-cell- phone-search-101313244.html.

2. See, e.g., Klump v. Nazareth Area Sch. Dist., 425 F. Supp. 2d 622, 639–41 (E.D. Pa. 2006) (finding

   that a school administrator’s search of a student’s cell phone violated the Fourth Amendment); Ito, supra note 2 (discussing a lawsuit brought on behalf of a student alleging a violation of her Fourth Amendment rights after school administrators confiscated and searched her cell phone).

3. See discussion infra Part I.B.

   This Comment develops the argument that the distinctive characteristics of students’ cell phones necessitate a reexamination of the standard, to this point governed by T.L.O., guiding public school officials’ searches through the contents of these devices.5 While courts and scholars have just begun to

   explore the privacy implications of cell phones in other Fourth Amendment contexts, the question has yet to be scrutinized under the T.L.O. framework and in the public school context. In anticipation of the debate, this Comment presents a case for students’ rights in an era when technology has strained the established legal structure, arguing that students’ privacy expectations in their cell phones demand greater protection than T.L.O. provides.

   
   

   Part I of this Comment describes the prevalent use of cell phones among students and in the public school environment, explains school officials’ corresponding need to search these devices’ contents, and provides a model scenario to illustrate the problem. In Part II, this Comment surveys the legal landscape governing school searches and notes a growing body of case law expounding on the issue of cell phone searches by law enforcement authorities in other areas of Fourth Amendment doctrine.

   
   

   Part III advances the argument that the pervasiveness of cell phones upsets the careful balance struck by the T.L.O. Court between students’ privacy expectations and school officials’ interests, which the Court used to justify a reduced standard of protection under the Fourth Amendment. A renewed examination of students’ privacy interests in their cell phones demonstrates that school officials should observe heightened safeguards before searching these devices. Part IV of this Comment then suggests safeguards that could feasibly be implemented in the public school environment.

   
   

   1. THE PRESENCE AND PROBLEMS OF CELL PHONES IN PUBLIC SCHOOLS

      
      

      This Comment’s argument addresses a specific and increasingly common situation facing school administrators: a search through the contents of a student’s cell phone based on some degree of suspicion that the student has violated school rules or criminal law. This Part first establishes the prevalence of cell phones in public schools, then explains the problems associated with

      
      

4. This Comment’s scope is limited to public primary and secondary schools in the United States, and it does not address searches by school officials in public institutions of higher education, such as colleges or universities. For a discussion of students’ Fourth Amendment rights in public higher education, see generally 5 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 10.11(d), at 531–38

   (4th ed...