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Op-Ed: Strict Privacy Rules for Public School Students’ Cell Phones (NY Daily News)

By Johanna Miller

A student’s cell phone isn’t a wallet or hairbrush. Its contents can be as personal as a diary.

In a Texas school district, for example, a teacher seized a student’s phone and searched her text-message history, discovering a private nude photograph she had sent to a friend. The teacher then shared the phone with the school district police officer.

And to make matters worse, the student got in trouble — she was suspended for 30 days because of “incorrigible behavior.”

In New York City, it’s a relief that the Michael Bloomberg-era ban on cell phones in city schools is over. For nearly a decade, the ban imposed needless burdens on kids and parents and served as an unnecessary flashpoint for confrontation between students and school staff.

But now that Mayor de Blasio is finally allowing city schools to catch up to the reality of the digital age, horror stories like the one in Texas show privacy protections for students must catch up in tandem.

As of now, individual schools across the city have been tasked with setting their own policies on when students can use phones and when staff can confiscate their phones for improper use.

But students’ constitutional rights do not vary from one school to the next. Unless the city limits upfront what schools can do with confiscated phones — students, families and teachers potentially face major consequences.

First, the city must strictly prohibit school staff from using a confiscated phone to contact anyone. In Philadelphia, for example, a teacher impersonated a student after seizing his phone and sent text messages to other students to entrap them into admitting they were violating school rules — even though there was no other evidence implicating those students beforehand.

Second, when a school seizes someone’s cell phone, there need to be clear rules governing when and what they can search. The U.S. Supreme Court recently said that a brief search of a cell phone may expose far more information than even the most exhaustive search of someone’s house. In the school context, the court has recognized that there are unique factors at play and has stressed the importance of taking into account students’ own expectations of privacy and their relative vulnerability when judging the intrusiveness of a search.

It’s difficult to imagine something more personal to a young person than the contents of his or her cell phone. What web pages they visit, their photos, their most private conversations — everything about them is contained in their phones.

To respect and protect a young person’s right to privacy, school staff should only search a cell phone when there is reasonable suspicion that a serious or potentially dangerous violation of the law or a school rule has occurred. For example, mere suspicion that a student has been texting, without more, should never be enough to look through the phone’s contents and risk exposing nearly every detail of a student’s private life.

Even when a search is justifiable at the outset, staff must only search applications likely to contain this evidence — and go no further. In the Texas case, the teacher had already confirmed that the student had been texting during school by looking at the message’s timestamp. There was no need to violate the kid’s privacy by going through and reading his text messages.

Other cities show that New York City cannot leave privacy protections up to schools to figure out on their own. It would be abandoning its responsibility to students and teachers at the last minute. The city must issue a chancellor’s regulation outlining these rules or require school principals to adopt them.

Our safe transition out of the past and into the future depends on it.

Miller is the advocacy director for the New York Civil Liberties Union.

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