1. Legal issues regarding
network filtering and
monitoring
John M. Rasmussen
KASB Attorney

2. Facebook
 Launched in February of 2004
 2nd most trafficked internet site in U.S. and
the world
 41.6% of U.S. citizens have a Facebook page
 2.6 billion minutes spent on Facebook daily
throughout the world
 600 million active users
 700,000 photographs uploaded monthly

3. MySpace
 Primarily a younger crowd (under 18
years of age)
 106 Million Members
 230,000 new profiles each day
 ―Having a MySpace page is like
decorating your locker‖

4. Twitter
 One of the fastest growing social
networks
 Micro-blog or super-texting
 Communicates through exchange of
140-character messages

5. Twitter (con’t)
 Now has 190 million users tweeting 65
million times per day
 Is the 3rd highest ranking social
networking site
 1500 percent growth in users

6. YouTube
 Ranked No. 4 among the top U.S. Web
sites visited
 Online video-sharing
 150 million videos
 100 million videos viewed per day
 Average age of video uploader is 26.57

7. Blogs
 Online journal
 High rate of anonymity
 133 million blogs
 175,000 new blogs created daily
 350 million blog readers (77% of all
internet users)

8. Online safety
 By some estimates
 50,000 sexual predators online at any
moment
 89% of sexual solicitations occur in
chatrooms and instant messages
 1 in 5 children has been solicited for sex
 25% of those solicited never tell a parent
 From NSBA National Affiliate Webinar- 3/12/07

9. Student Free
Speech Rights
 Standards
 Tinker
 Substantial disruption or material interference (or
reasonably forecast)
 Fraser
 Lewd, indecent or patently offensive (at school)
 Kuhlmeier
 School sponsored: Legitimate pedagogical concerns
 Frederick (2006)
 Schools may regulate speech promoting drug use
(Court found it was a school activity)

10. Statutory Authority:
K.S.A. 72-8901
 Subsection (b) provides authority to discipline
for conduct which substantially disrupts,
impedes or interferes with the operation of
any public school.
 Subsection (d) provides authority to discipline
for off-campus conduct if the conduct
constitutes the commission of a felony.

11. K.S.A. 72-8256 (2008)
 Adds cyberbullying to the definition of bullying under
state law
 Defines cyberbullying as: bullying by use of any
electronic communication device through means
including, but not limited to email, instant messaging,
text messages, blogs, mobile phones, pagers, online
games and websites
 (b) The board of education of each school district
shall adopt a policy to prohibit bullying on or while
utilizing school property, in a school vehicle or
at a school-sponsored activity or event.

12. Regulation of Student Speech
(Internet Use) At School
 School can place educationally based
restrictions on student speech that is
sponsored by the school or that is
necessary to maintain an appropriate
school climate
 This legal standard applies to student
speech via the district internet system or
via cell phones used at school

13. Sexting
 The practice of sending or posting sexually
suggestive text messages and images
including nude or semi-nude photographs via
cell phones or over the internet.
 Recent survey: 20% of teens have admitted
to sexting
 Pornography or prank?
 Challenging issue because of the criminal
component and the fact that kids can be
placed on sex-offender lists that will affect
them for the rest of their lives

14. Sexting
 4% of cell-owning teens ages 12-17 say they have sent sexually
suggestive nude or nearly nude images of themselves to someone
else via text messaging.
 15% of cell-owning teens ages 12-17 say they have received
sexually suggestive nude or nearly nude images of themselves from
someone else via text messaging.
 Older teens are much more likely to send and receive these images;
 8% of 17-year-olds with cell phones have sent an image by text and
 30% have received a nude or nearly nude image on their phone
 Teens who pay their own phone bills are more likely to send ―sexts‖
 17% of those who pay the entire bill have sent sexts
 3% who do not pay or pay only a portion have sent sexts
 Teens and Sexting, Pew Internet & American Life Project (December 15, 2009), available at
pewinternet.org

15. Sexting
 Not much case law
 In some states, prosecutors have tried to stop it by charging
teens who send and receive pictures
 Miller v. Skumanick, Pennsylvania: three teens charged with
child pornography, ACLU filed suit to block charges; 3rd circuit
affirmed no legal basis to bring charges
 A.H. v. State, 949 So.2d 234 (Florida 2007)
 Court held it didn’t matter that the photos were texted and emailed
only to each other; still child pornography
 Vermont: legislature considering a bill to legalize the
consensual exchange of graphic images between two people
ages 13 to 18

16. Sexting
 Legislative response
 In 2009, 6 states enacted legislation
addressing sexting
 In 2010, 12 states introduced legislation
 Issues
 Misdemeanor/felony?
 Affirmative defenses
 Registering as a sex offender

17. Sexting
 Options for schools
 Define it as an infraction of school rules
 Discipline – think Fraser, Tinker
 Contact parents
 Training – raise awareness among students and
parents on dangers of sexting
 The strange case of Assistant Principal Ting-Yi
Oei
 Charged with possession of child pornography
after obtaining image as part of an investigation

18. Sexting
Ting-Yi Oei, ―My Students. My
Cellphone.
 Charges were ultimately
dropped
 Legal fees: $167,000.00

19. Sexting
 When discovered:
 Tell parents of all students involved
 Report sexting to the police
 Minimize exposure to child pornography
charges; isolate the evidence
 Discipline students involved
 Prevent harassment and bullying of
students involved in sexting

20. School authority to ban
cell phones
 Price v. New York City Board of
Education (2007) (2nd Circuit)
 Banning cell phones does not interfere with
fundamental rights of parents.
 Lacey v. Farley (2007) (6th Circuit)
 No constitutional right to posses cell phone
in school.

21. Authority to confiscate
student’s cell phone
 Koch v. Adams, (2010 Arkansas
Supreme Court)
 Policy called for cell phone to be retained
for two weeks
 Parents alleged wrongful taking of cell
phone, conversion, and unlawful taking of
private property without due process
 Court held no violation of constitutional
rights

22. Searches of Cell Phones
 All searches must comply fully with the
―reasonableness standard‖ set forth in New
Jersey v. T.L.O, 469 U.S. 328 (1985)
 Search is justified at its inception
 Scope of search is reasonably related to the
circumstances justifying the search at its inception
 Klump v. Nazareth Area School District, 425
F.Supp.2d 622 (E.D.Pa. 2006)
 Calling nine students from directory not a
justified search

23. Follow up to Sexting case
 ACLU filed suit on behalf of 19 year old
former student against Tunkhannock Area
High School (Pennsylvania)
 School officials invaded her privacy and violated
her free speech rights when they confiscated her
cell phone and found semi-nude photos stored on
the phone and turned the phone over to
authorities.
 ―There was no reason to go looking for these pictures on
her phone, and unless you have a very good reason, you
can’t go through someone’s private things. We think it is
a grave violation of her privacy.‖

24. Off-Campus Student
Websites
 Courts apply the Tinker standard
 Tension between constitutional rights of
students and school’s need for order
 School must show actual or foreseeable
disruption—not just distasteful or rude
content
 Threats of violence?
 Accessed at school?

25. Off-Campus Online
Speech
 Case law is limited and provides unclear
guidance
 Must be a substantial and material threat of
disruption on campus
 Evidence of disruption? Phone calls, emails,
etc.
 School should try and establish a school
―nexus‖ to bring the case under the
educationally based restrictions standard

26. Recent case: No
disruption
 J.C. v. Beverly Hills Unified School District, 2010 WL
1914215 (C.D. Cal.)
 Student recorded 4 minute and thirty-six second video of her
friends talking about a classmate in unkind and sexual terms
and posted it on YouTube
 Suspended for two days
 Court noted any speech regardless of its geographic origin,
which causes or is foreseeably likely to cause a substantial
of school activities can be regulated by the school
 However, in this case, court found insufficient evidence of
disruption
 ―Substantial must equate to something more than the
ordinary personality conflicts among students‖

27. Student on teacher-
Facebook
 In Evans v. Bayer, (S.D. Fla., Feb. 12, 2010),
the district court ruled high school student
who was suspended and removed from AP
course because she created off-campus a
group on Facebook dedicated to criticizing a
particular teacher, has stated a valid claim for
violation of her free speech rights.
 School failed to meet Tinker standard

28. Federal Laws that relate to
filtering
 The Children’s Internet Protection Act
(CIPAA)- mandates basic content filtering
 The Family Educational Rights and Privacy Act
(FERPA) – protects the privacy of student
records
 State laws
 K.S.A. 72-6214 – must comply with FERPA
 K.S.A. 72-5386 – can’t withhold records
 The Children’s Online Privacy Protection Act
(COPPA)

29. The Children’s Internet
Protection Act (CIPA)
 Enacted by Congress in 2000 as part of the
Consolidated Appropriations Act to address
concerns about access to offensive content
over the Internet on school and library
computers.
 CIPA imposes certain types of requirements
on any school or library that receives funding
for Internet access or internal connections
from the E-rate program.

30. What does CIPA require?
 Schools and libraries subject to CIPA
may not receive the discounts offered
by the E-rate program unless they
certify that they have an Internet safety
policy that includes technology
protection measures.

31. CIPA requirements
 The protection measures must block or filter
Internet access to pictures that are:
(a) obscene,
(b) child pornography, or
(c) harmful to minors
Before adopting this Internet safety policy,
schools and libraries must provide reasonable
notice and hold at least one public hearing or
meeting to address the proposal.

32. CIPA Requirements
 In addition to the three types of
material that must be blocked, CIPA
explicitly permits schools and libraries
to block any content deemed
inappropriate for minors by local
standards.

33. CIPA requirements
 Schools subject to CIPA are required to adopt and
enforce a policy to monitor online activities of minors.
 The Internet safety policy must address: (a) access
by minors to inappropriate matter on the Internet;
(b) the safety and security of minors when using
electronic mail, chat rooms, and other forms of direct
electronic communications; (c) unauthorized access,
including so-called ―hacking,‖ and other unlawful
activities by minors online; (d) unauthorized
disclosure, use, and dissemination of personal
information regarding minors; and (e) measures
restricting minors’ access to materials harmful to
them.

34. CIPA requirements
 Schools and libraries are required to
certify that they have their safety
policies and technology in place before
receiving E-rate funding.
 An authorized person may disable the
blocking or filtering measure during any
use by an adult to enable access for bona
fide research or other lawful purposes.

35. KASB Policies
 IIBGA Children’s Internet
Protection Act
 IIBG Computer Use
 KBA District or School Web Sites

36. Challenges to CIPA
 United States v. American Library
Association (2003)
 The U.S. Supreme Court held that CIPA
does not violate the First Amendment,
even though it may block some legitimate
sites, because libraries may disable the
filters for adult patrons upon request.

37. Summary of CIPA
 Requires ―technology protection measure‖ for visual
depictions only (that are deemed obscene, child
pornography, or harmful to minors).
 Whether a school filters any content besides the visual
depictions defined in the law is a local decision.
 FCC regulations give schools and libraries
considerable latitude on how to implement the
mandates in the law.
 ―We conclude that local authorities are best situated to
choose which technology measures will be most appropriate
for their relevant communities.‖

38. Children’s Online Privacy
Protection Act (COPPA)
 Became effective April 21, 2000
 Applies to the online collection of personal
information from children under 13 years of
age.
 Details what a website operator must include
in a privacy policy, when and how to seek
verifiable consent from a parent or guardian,
and what responsibilities an operator has to
protect children’s privacy and safety online
including restrictions on the marketing to
those under 12.

39. COPPA
 The Act applies to websites and online
services operated for commercial purposes
that are either directed to children under 13
or have actual knowledge that children under
13 are providing information online.
 Most recognized non-profit organizations are
exempt from most of the requirements of
COPA.

40. Complying with COPA
 Website operators must use reasonable
procedures to ensure they are dealing with
the child’s parent. These procedures include:
 Obtaining a signed form from the parent;
 Accepting and verifying a credit card number;
 Taking calls from parents on a toll-free telephone
number staffed by trained personnel;
 Email accompanied by digital signature;
 Email accompanied by a PIN or password obtained
through one of the verification methods above.

41. The Family Educational
Rights and Privacy Act
 FERPA – gives parents access to educational
records and prevents the school from
disclosing records without permission of the
parent or authorization by law.
 Educational records are defined as those
records, files, documents or other materials
that contain information directly related to a
student and which are maintained by the
school.
 Information stored by electronic means is
included.

42. FERPA
 Annual notice
 Directory Information- may be released
without the consent of the parents
 Photos on school websites?
 Penalties – loss of federal funds
 KASB policy - JR

43. Acceptable Use Policies
 Define scope and purpose of e-mail and/or
Internet access
 Require efficient, ethical, and legal utilization
of school district resources
 Usage of Internet & E-mail
 Privilege, not a right
 Responsibilities in return—breach of which can
result in loss of privileges, disciplinary action, or
both
 Right to monitor; no expectation of privacy
 KASB policy IIBG

44. E-Discovery
 Federal rules of civil procedure amended in 2006.
 ―Litigation hold‖ -when you receive notice of
litigation, you are to required to preserve all
evidence, including electronic evidence, that could
pertain to the case.
 Only required if you have a ―reasonable anticipation of
litigation.‖
 If you have a regular data destruction cycle, you
have to stop your data destruction process
immediately.
 You must keep information until litigation is finished.

45. E-Discovery
 Organizations need not retain all electronic
information ever generated or received.
 Destruction is an acceptable stage in the
information life cycle; an organization may destroy
or delete electronic information when there is no
continuing value or need to retain it.
 Systematic deletion of electronic information is not
synonymous with evidence spoliation.
 Absent a legal requirement, organizations may
adopt programs that routinely delete certain
recorded communications, such as e-mail, instant
messaging, text messaging and voice-mail.

46. Common Tech Discipline Topics
 Accessing Pornography
 Sending inappropriate e-mail
 Sexual or Racial Harassment
 Obscene content
 Attacking board, administration, or other employees
 Digital evidence of inappropriate relationships with
students
 Personal use while on the clock
 Email, social networking, or blogging
 Using district system to solicit personal business
 Political activity
 Unauthorized disclosure of student information
 Inappropriate texts and sexting
 Employees’ social networking pages or blogs

47. Searches of Computers
 Pornography Cases
 Other Cases
 Clear policy or warning
 O’Connor workplace search rules followed
 Reasonable at its inception
 Reasonable in scope

48. Thygeson v. U.S. Bancorp, 2004 WL
2066746 (D. Or. 2004).
 An employee who was fired for misuse of
his employer's computer system brought
action against the employer alleging
invasion of privacy based on the employer's
monitoring of his personal e-mail and
internet access. The court denied the
claim.
 ―[W]hen, as here, an employer accesses its own
computer network and has an explicit policy
banning personal use of office computers and
permitting monitoring, an employee has no
reasonable expectation of privacy .‖

49. Employer Control of
Computers
 ‖They didn’t have to be reasonable
conditions; but the abuse of access to
workplace computers is so common (workers
being prone to use them as media of gossip,
titillation and other entertainment and
distraction) that reserving a right of
inspection is so far from being unreasonable
that the failure to do so might well be
thought irresponsible.‖
 Muick v. Glenayre Electronics, 280 F.3d 741 (7th
Cir. 2002).

50. Employee Blogs
 The law offers no special protection for
blogging.
 Public Employee Speech
 Is it part of the employee’s duties?
 NOT PROTECTED: When public employees make statements
pursuant to their official duties, they are not speaking as
citizens for First Amendment purposes, and the Constitution
does not insulate their communications from employer
discipline. Garcetti v. Ceballos, 547 U.S. 410 (2006)
 Is it on a matter of public concern?
 Balance of interests – the Pickering factors

51. Controls on Blogging
 Nickolas v. Fletcher, 2007 WL 1035012 (E.D. Ky. 2007)
 Court denied employee’s injunction in a case challenging the
state’s decision to prohibit state employees from accessing blogs
from state-owned computers.
 Nickolas is a ―blogger‖ whose website focuses on Kentucky politics
and is critical of the Fletcher administration. As a result of the
disputed state policy, state employees can no longer access
Nickolas's website and other websites from state-owned computers.
 Nickolas alleges that the State's policy infringes upon his rights
under both the First Amendment and the Equal Protection Clause of
the United States Constitution.
 The State allows employees to use the Internet for work-related
purposes and for limited personal use so long as it does not
interfere with their official duties.
 Policy change came after survey showed personal use was leading
to employee inefficiency at work.

52. Teacher blogging
 A North Carolina teacher was dismissed for
unprofessional conduct based on Facebook
postings
 ―I am teaching in the most ghetto school in
Charlotte.‖
 Stated one of her hobbies was ―drinking.‖
 Never put in electronic form anything that you
wouldn’t want viewed by a million people,
including your colleagues, students, and
supervisors – and your mother.

53. Suggestions for teachers
with social networking sites
 If you have a personal account, restrict
viewing by students – Don’t list students as
―friends‖
 Do not place pictures of your students on
your personal site – invites a higher level of
scrutiny
 Would you want the contents of your social
networking site or your blog featured on the
six o’clock news?
 Teachers are held to a high standard for
behavior, judgment, and professionalism

54. Policy on Facebook
 Model policy
The Superintendent and the School Principals will
annually remind staff members and orient new
staff members concerning the importance of
maintaining proper decorum in the on-line, digital
world as well as in person. Employees must
conduct themselves in ways that do not distract
from or disrupt the educational process. The
orientation and reminders will give special
emphasis to:
 improper fraternization with students using
Facebook and similar internet sites or social
networks;

55. Sample Facebook policy
(cont.)
 inappropriateness of posting items with sexual
content;
 inappropriateness of posting items exhibiting or
advocating use of drugs and alcohol;
 monitoring and penalties for improper use of district
computers and technology;
 the possibility of penalties, including dismissal from
employment, for failure to exercise good judgment in
on-line conduct.
The Superintendent or designees may periodically
conduct internet searches to see if teachers have
posted inappropriate materials on-line.

56. Other states – new laws
 Louisiana – a new state law requires all Louisiana
districts to implement policies requiring
documentation of every electronic interaction
between teachers and students through a nonschool-
issued device, such as personal cellphone or email
account.
 Parents also have the option of forbidding any
communication between teachers and their child through
personal electronic devices.
 Policy does not apply to one-way communication to groups
of students regarding classroom assignments, etc.
 Louisiana Association of Educators – ―see it as a necessary
evil.‖

57. Social Media in schools?
 Need to teach ―digital citizenship.‖
 NING
 Educational friendly social network
 46 million users
 100% private controlled networks
 Does not require local storage
 Free to K-12 schools

58. Questions/Comments
 jrasmussen@kasb.org
 1-800-432-2471