YOUR HOME, THE NEW CLASSROOM: HOW PUBLIC-SCHOOL ZOOM USE ENCROACHES INTO FAMILY PRIVACY.

• Author: Foster, Caroline A.

1. Introduction

   When COVID-19 struck the world in mid-March 2020, school closures in the United States prompted school officials to restructure learning to an online platform. (1) As a result of this transition to online learning, Zoom quickly rose to the forefront of platforms utilized by schools due to its video conferencing capabilities. (2) Zoom became a desirable platform for educators because it removed video chat time limits for K-12 schools in the United States and the platform has many features that are useful for online learning. (3) Nevertheless, the negative impact of Zoom use in schools quickly came to light in terms of its infringement on privacy rights of both students and families. (4)

   Zoom insists that it takes the privacy rights of its customers very seriously, trying to accommodate for both expressed and potential privacy concerns. (5) Further, the company released a privacy statement for Zoom users in K-12 schools, revealing a higher standard of protection for this demographic. (6) Despite the precautions the platform is taking to minimize privacy concerns, schools utilizing Zoom can force students to use certain features--such as turning on their video cameras--infringing on the privacy rights of those within the video frame. (7) Not only are students attempting to adapt to a lack of social interaction and routine as a result of the switch to online learning, but they also have to cope with balancing privacy while following school protocols. (8)

   K-12 schools should not use Zoom as an alternative method of learning during the COVID-19 pandemic--and future events that prompt school closures--due to the potential infringement on students' privacy rights. While the Fourth Amendment of the United States Constitution ("Fourth Amendment") provides that students have a lower expectation of privacy while in public schools, the ability for educators, as well as school officials and fellow students, to now see inside--and enter--the private homes of students and parents is very different than the Fourth Amendment's intended scope. Particularly, schools forcing students to use their webcams while attending class is an infringement of students' privacy rights due to the invasive nature of this feature. If schools allowed for optional webcam use, Zoom may prove appropriate in the public-school setting, but there are still other questionable privacy concerns. In the event that Zoom use in schools becomes a standard, the government must update the Family Educational Rights and Privacy Act ("FERPA") and other educational based acts that address student privacy in order to account for the privacy infringements that are occurring as a result of virtual education due to COVID-19.

2. History

   1. The Fourth Amendment

      Citizens' privacy rights stem from the Fourth Amendment. (9) In order for an individual to assert their right to privacy under the Fourth Amendment, they must exhibit a subjective expectation of privacy that society recognizes as reasonable. (10) Individuals have a subjectively reasonable expectation of privacy when they take measures to ensure privacy in their location, whether that location is their own personal home or a public telephone booth with a door they can close. (11) However, citizens can waive their right to privacy if they act in a manner that exposes their private affairs to the world. (12) Even if an individual is within their private home, their right to privacy can be unintentionally waived if they expose their matters to the world, such as conducting their actions in front of an open window or talking loudly on the phone on their front porch. (13)

      Typically, probable cause is needed in order for police to conduct a search or seizure that would otherwise invade one's right to privacy. (14) Nevertheless, probable cause is not needed in every must exhibit an actual (subjective) expectation of privacy, and second, that expectation of privacy must be one that society recognizes as reasonable. Id. situation, as there are exceptions to this requirement. (15) One recognized exception arises in "special needs" cases. (16) Under the aforementioned exception, there is no requirement for a warrant or probable cause in certain programmatic searches when these searches are performed in furtherance of a governmental "special need" as opposed to criminal investigation purposes. (17) One commonly recognized group that is susceptible to searches under the special needs exception is public school students. (18)

      1. The Reduced Scope of the Fourth Amendment with Students

         The Supreme Court of the United States ("Supreme Court") recognizes that students in the school environment or on school grounds have a lesser expectation of privacy than citizens who are not in school. (19) Public school students are also susceptible to a higher degree of governmental intervention than private school students due to the school being governmentally operated. (20) Nonetheless, students do not "shed their constitutional rights... at the schoolhouse gate." (21) This diminished constitutional protection granted to students is mostly a result of school officials' need to maintain discipline and order within the school. (22) Courts balance the interests of both the students and the school officials by recognizing qualitative differences between the constitutional remedies for both students and adults. (23) Due to this diminished right to privacy, schools are able to act in ways that further governmental interests without the need to obtain a warrant, even if those actions invade the privacy rights of students. (24) When a school official conducts a search of a student, the search will be "justified at its inception" when there are reasonable justifications for believing that the search will uncover evidence that the student has violated or is violating either a law or the rules of the school. (25) This standard is appropriate in the school setting because of its focus on reasonableness. (26) Teachers and school officials utilize their reason and common sense when searching a student instead of the harder probable cause standard, and the search invades a student's privacy only to the extent necessary to uphold school order. (27) This standard adequately balances the privacy interests of students and the need for school officials to maintain order. (28)

         School officials have found there to be legitimate governmental interests in certain privacy invasions of students on school property, including, but not limited to, drug testing and ensuring the safety of students. (29) Courts have even found these rights to extend off school property in certain circumstances if there remains an interest for school officials to maintain order, such as school sponsored field trips. (30) However, there are limitations on the scope of what school officials can search, showing that schools do not have endless authority over students and their belongings. (31)

      2. Incorporating Technology into the Fourth Amendment

         When drafting the Fourth Amendment, the Framers could not have foreseen the difficulties that would arise with the advancement and progression of technology. (32) In particular, the development and advancement of police surveillance techniques creates issues for many courts when determining a search's reasonableness. (33) Historically, courts utilize the two-prong test from Katz v. United States when determining if there is a valid privacy interest. (34) Typically, there is no reasonable expectation of privacy when an individual knowingly exposes their private matter to the world or voluntarily gives private information to a third party, such as a bank or a telephone company. (35)

         In applying the two-prong test to cases involving police officers using technological means to search and gather evidence, courts have found many instances where no invasion of privacy took place. (36) However, there are cases where the Supreme Court held that certain technological tools created an invasion of a legitimate expectation of privacy, revealing the tension when applying Fourth Amendment principals to advancing technology. (37) In determining what constitutes an invasion of privacy, courts have avoided creating a definitive rule, but they appear to convey that no invasion of privacy occurs when the technology is used only as a sensory enhancement tool. (38) On the other hand, there is an invasion of privacy when the technological tool invades and is used to interfere with the privacy of the home environment. (39)

         It is recognized that property interests, in addition to privacy interests, are protected under the Fourth Amendment; the Fourth Amendment prohibits the government from committing a trespass onto private property by using technological means. (40) In cases where this tension between the Fourth Amendment and the advancement of technology arises, the Supreme Court seems to draw a line of reasonableness once technology is used to allow the government to gain information relating to the interior of the private home, holding that there is a violation of privacy at that point. (41) Further, the courts also seem to consider whether the technological device used to access the potentially private information is in "general public use." (42) If the technology is in "general public use," there is a higher likelihood that police officers did not invade a privacy interest due to the device being accessible by non-law enforcement personnel. (43) Despite the advancement of technology and its broader use, science and technology should not have the power to decrease the privacy rights guaranteed by the Constitution. (44)

   2. Combining Education and Technology Under the Fourth Amendment

      With the advancement of technology, schools have the ability to determine if they want to utilize these technological advancements on school grounds. (45) over the years, schools have increased their use of technological tools. (46) Many schools are utilizing...