Our handout from the Association of California School Administrators Safe Schools Conference, August 1, 2013.

1. © 2013. Gagnier Margossian LLP. All rights reserved.
Student Privacy Rights:
Social Media, Device Access and
Use In & Out of the Classroom
Salient advice comes from a long-standing legal precedent upholding student’s First
Amendment rights: “Students don’t shed their constitutional rights at the school
house gates.”
With the proliferation of devices, other technology and means to communicate, such
as social networking services, how do schools balance students’ constitutional rights
with schools’ needs to maintain order and a positive educational environment?
Tips
for
Protec.ng
Student
Privacy
There are some simple things that schools
can do to protect the privacy of their
students, including:
➡ Carefully evaluating the use of any
service that utilizes “cloud
storage” of student information;
➡ Providing options for parents to
meaningfully opt-out of activities
for their children that would
include the sharing of their PII
online (see the federal Protection
of Pupil Rights Amendment); and
➡ Ensuring that proper law
enforcement channels are used as
current law is still trying to catch
up to the technology.
Student
Privacy
Facts
&
Figures
➡ Over 8
million
student privacy
records have been lost from
nearly 600
security
breaches
since 2005.
➡ 15%
of Americans have
never
checked their social networking
privacy and security account
settings.
➡ 38%
of Facebook users in the last
year were under
the
age
of
13.
Seven
Scenarios
That
Are
Commonly
Arising
for
Schools
Today
1) Students are being asked
for
their
login
creden.als
to
their
social
networking
accounts, such as Facebook, after posting something about a school employee or
policy.
2) Schools are working with private sector third party vendors, using tracking
soHware
to
monitor
students.
3) Schools are implementing programs using RFID - Radio Frequency Identification
technology.
4) Schools are forcing
students
to
hand
over
devices, such as feature phones or
smartphones, to access
photos
or
informa.on.
5) Schools are using
webcams
or
other
means to take photos of students and
otherwise track
their
ac.vi.es if they take school-issued devices off-campus.
6) At the federal and state level, policy initiatives have been proposed to open
up
data
sets
on
students
to
the
private
sector.
7) Schools are not
controlling
the
ac.vi.es
of
parents who come on campus,
create
content,
such
as
photos,
and
then
post
them
online.
What
is
Personally
Iden.fiable
Informa.on
(PII)?
Personally identifiable information, known as PII, includes any information that can
be linked back to an individual, such as:
✓ Name;
✓ Face;
✓ Fingerprints;
✓ Handwriting;
✓ Digital identity;
✓ Date of Birth; and
✓ Birthplace.

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What
is
COPPA?
The Children’s Online Privacy Protection
Act, known as COPPA, requires websites
and any company that provides a platform
of any kind online or via mobile
technology, to get parental consent before
collecting or sharing information for
children under the age of 13.
As more unique and engaging education
products emerge on the market, it is
important to make sure that any websites
or applications used in the classroom or
recommended to parents are COPPA
compliant.
The FederalTrade Commission, who
enforces this law, has a variety of resources
for educators and parents alike on best
practices and tools.
The
Law:
Long-­‐Standing
Precedent
&
New
Cases
to
Be
Aware
Of
➡ Tinker
v.
Des
Moines
(1969): Filed by the parents of high school
students prevented by school officials from wearing black arm bands in
protest of theVietnam War. The Court stated that the students had
the right to express their opinions as long as it did not “materially or
substantially” interfere with appropriate disciplinary requirements or the
rights of others.
➡ New
Jersey
v.
TLO
(1985): School searches may be permissible when
the measures adopted are reasonably related to the objectives of the
search and not excessively intrusive in light of the age and sex of the
student and the nature of the infraction.
➡ Robbins
ex.
rel
Robbins
v.
Lower
Merion
School
District
(2010):
Court prohibited Lower Merion School District from surveying
students by remotely accessing the webcams included on their school-
issued laptops.
➡ G.C.
v.
Owensboro
Public
Schools
(2013): A search is justified if there
is reasonable suspicion that it will uncover further wrongdoing or injury
to either the student or another person. Simply using a cell phone on
campus does not trigger an automatic right for a school official to
conduct a search if its contents. Contents searched on a cell phone
must be related to the infraction at issue.
➡ N.N.
v.
Tunkhannock
Area
School
District
(2011): School principal
was found to have acted inappropriately when he turned student’s cell
phones over to police to report what he believed to be inappropriate
photos stored in the phone’s memory.
➡ Mendoza
v.
Klein
Ind.
Sch.
Dist.
(2011):An associate principal’s search
of a student’s phone was considered justifiable for the purposes of
determining whether the student had used the phone while in school.
However, the act of viewing individual texts stored on the phone may
be considered unreasonable.
What’s
On
the
Horizon
➡ The Social
Media
Privacy
Act, signed into law by California Governor
Jerry Brown, was enacted to protect students at universities and
employees in California from the demand of their usernames and
passwords on social networking services.
➡ There could be future amendments or other legislative efforts that
would apply to K-12 schools, with exemptions for instances involving, for
example, bullying investigations.
#nerdlawyers
It’s
Not
“You”
v.
the
“Students”:
Educa.on
on
Privacy
Online
Content
Make sure students are aware of the
content they produce and the content
that they consume.
Conduct
Not everyone is engaging in appropriate
conduct online. Individuals are accountable
for their actions. Inform students that
actions online are public and permanently
archived.
Context
Educate students on context. Know if you
are communicating privately or publicly.
Understand the privacy rules and settings
for the platforms you are using.
Contact
Work with students to understand there
are hackers and scammers online.