Friday, May 21, 2010

Sexting-Students Privacy Rights Flexing Muscle On Issue

Ting-Yi Oei And His Wife

The Legal Intelligencer is reporting on a case unfolding in Wyoming County over an issue involving sexting and the contents of a student's confiscated cellphone. The student claims her constitutional rights were violated when her principal, Gregory Ellsworth, at Tunkhannock Area High School confiscated her cell phone, found nude images she had taken of herself and turned it over to prosecutors.

According to that suit, school officials turned over the students' phones to former Wyoming County District Attorney George Skumanick Jr., who responded by targeting 13 girls and three boys with threats of criminal charges if they did not agree to take a class he had designed on the dangers of sexting.

Most agreed to take the class to avoid prosecution, but three of the girls and their parents instead enlisted the help of the ACLU to challenge the threatened prosecutions. Lawyers from the American Civil Liberties Union of Pennsylvania won an injunction from U.S. District Judge James Munley that was later upheld by the 3rd U.S. Circuit Court of Appeals.

Now, in a second suit, a student identified only as "N.N." claims the school officials and prosecutors illegally searched the contents of her phone even though she intended the racy photos to be "seen only by herself and, perhaps, her long-time boyfriend."

Listening to Webster and Nancy this morning on WILK on the subject I was almost swayed in their argument that the prinicipal had the right to confiscate their phone but didn't have the right to drill down with its keyboard to find out what information including photos were saved on the phone.

Take a look at this case from Virginia fedatured on Wire which almost branded assistant principal, Ting-Yi Oei, at Freedom High School in South Riding as a child pornographer. In that case Mr. Oei was charged with possession of child pornography and related crimes after he had been asked to investigate a rumored sexting incident at the high school where he worked. Upon finding a student in possession of a photo on his phone that depicted the torso of a girl wearing only underpants, her arms mostly covering her breasts, the assistant principal showed the image to the principal who instructed him to preserve the photo on his computer as evidence, which he did.

A Virginia court threw out the case but only after Mr. Oei took out a second mortgage on his home and spent $150,000.00 to clear his name.
"These charges are so toxic and incendiary," says Diane Curling, a former teacher and Oei’s wife of 35 years. "Children need to be made aware of the dangers of sexting, but to intimidate public education officials and try to make it a felony to even touch something like this is terrifying. . . . If we are not careful, we will find ourselves with a new McCarthy era. "

Getting back to the Tunkannock case: The plaintiff is one of the girls who took Skumanick's class to avoid prosecution, but now claims that the initial search was illegal.

"I was absolutely horrified and humiliated to learn that school officials, men in (the) DA's office, and police had seen naked pictures of me," the plaintiff, now 19, said in a statement released by the ACLU.

"Those pictures were extremely private and not meant for anyone else's eyes. What they did is the equivalent of spying on me through my bedroom window," the plaintiff said.

In Oei's case Oei says he showed the image to his boss, Principal Christine Forester, who told him to preserve a copy on his office computer for the investigation. A computer neophyte, Oei didn’t know how to transfer the image from the boy’s cell phone, so the teen sent the picture to Oei’s phone, and told him how to forward it to his work e-mail address. When the process was complete, Oei instructed the student to delete the image from his phone.

Since the Virginia court threw out the case before it ever went to trial it begs the question in this case "Does the prinicipal have the right to view information on the phone on grounds of a security issue or suspected child abuse?" In Oei's case the court dismissed the fact that he not only viewed a photo but downloaded it and didn't penalize him.

The National School Safety and Security Services points out some significant and potentially life threatening scenarios when schools allow cell phone use on their campuses.

Cell Phones Can Detract From School Safety & Crisis Preparedness

1.Cell phones have been used for calling in bomb threats to schools and, in many communities, cell calls cannot be traced by public safety officials.

2.Student use of cell phones could potentially detonate a real bomb if one is actually on campus.

3.Cell phone use by students can hamper rumor control and, in doing so, disrupt and delay effective public safety personnel response.

4.Cell phone use by students can impede public safety response by accelerating parental response to the scene of an emergency during times when officials may be attempting to evacuate students to another site
It will interesting how this plays out in Pennsylvania.

5.Cell phone systems typically overload during a real major crisis (as they did during the Columbine tragedy, WTC attacks, etc.), and usage by a large number of students at once could add to the overload and knock out cell phone systems quicker than may normally occur. Since cell phones may be a backup communications tool for school administrators and crisis teams, widespread student use in a crisis could thus eliminate crisis team emergency communications tools in a very short period of critical time.

It is somewhat amazing that it is mandatory to subject your cellphone to scan and search in the airport but one child believes her privacy was violated because she initially broke a rule and didn't like the consequences. It will be interesting to see how this issue plays out in the courts.

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