ARKANSAS SCHOOL BOARDS ASSOCIATION...TEENS AND SOCIAL MEDIA 84% of online teens have a social...
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ARKANSAS SCHOOL BOARDS ASSOCIATION
Transcript of ARKANSAS SCHOOL BOARDS ASSOCIATION...TEENS AND SOCIAL MEDIA 84% of online teens have a social...
ARKANSAS SCHOOL BOARDS ASSOCIATION
DAK KEES
UNITED STATES ATTORNEY’S OFFICE
FOR THE WESTERN DISTRICT OF ARKANSAS
414 Parker Avenue
Fort Smith, AR 72901
(479)-783-5125
CODY KEES
Bequette, Billingsley & Kees, P.A.
Attorneys at Law
425 West Capital Avenue
Suite 3200
Little Rock, AR 72201-3469
(501)-374-1107
TEENS AND SOCIAL MEDIA
84% of online teens have a social networking profile.
46% have open access to their online profile information.
84% of teens have cell phones.
More than 88% of teens are texting.
4th AMENDMENT OF THE CONSTITUTION
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
4th AMENDMENT OF THE CONSTITUTION
WHAT IS THE DIFFERENCE BETWEEN A SEARCH AND A SEIZURE?
Search - An invasion of privacy.
Seizure - The deprivation of liberty, or the enjoyment in exercising dominion or control over a thing, be it property or person.
4th AMENDMENT OF THE CONSTITUTIONNew Jersey v. T.L.O.
US Supreme Court (1985)
Supreme Court held that the Fourth Amendment’s prohibition against unreasonable searches and seizures applies to students in public schools. However, the Fourth Amendment rights guaranteed to public school students is balanced with the school’s duty to maintain order and discipline within the school. Students have a decreased expectation of privacy in their person and belongings in the school setting because the school administrators stand in loco parentis – in the place of the parent – with respect to the students.
4th AMENDMENT OF THE CONSTITUTION
What does this mean?
• A more relaxed “reasonableness” standard when evaluating the permissibility of school searches.
• Instead of “probable cause,” school administrators must have “reasonable cause” or “reasonable suspicion” to conduct a search.
• Courts have determined a school administrators search of a student complies with the Fourth Amendment if:
• (1) the search is justified at its inception, and
• (2) if the scope of the search is reasonably related to the circumstances necessitating the search.
JUST WHAT IS REASONABLE SUSPICION
HOW DOES THIS APPLY TO CELL PHONES
Riley v. California (2015)
Supreme Court held that police officers generally may not search the contents of a cell phone seized from a criminal defendant without a warrant. The Court recognized that modern cell phones may contain an immense amount of personal data in which a person has a high expectation of privacy.
HOW DOES THIS APPLY TO CELL PHONES
• School administrators must make a reasonable suspicion determination before searching a student’s cell phone when the student is suspected of violating school disciplinary codes. (New Jersey v. T.L.O.)
• In light of Riley, it appears that courts will be more likely to side with students, notwithstanding their reduced expectation of privacy, if the suspected violation has nothing to do with a cell phone.
• It is reasonable to anticipate that future litigation will further define the scope of permissible cell phone searches, and clarify how Rileyimpacts the scope of student searches.
4th Amendment- School Personnel v. SRO
• SRO’s are employees of the city/ state and are law enforcement
• You (the district) do not control or direct the SRO
• School staff, acting without law enforcement, have a lesser standard and only need a “reasonable suspicion” of wrongdoing or a moderate chance of finding evidence of wrongdoing to perform a search. Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 128 S.Ct. 2633 (2009).
Search and Seizure Cases
• School staff confiscated and searched a student’s phone, including text messages, after he was caught texting in class. The teacher claimed a full search was necessary because the student had occasional suicidal thoughts and anger issues. There were no facts present to suggest the student had done anything wrong, besides using the phone in class.
• How did the court rule?
Search and Seizure Cases
• The school can confiscate the phone, but the search was unlawful and violated the 4th Amendment. There was no reasonable suspicion of wrongdoing sufficient to justify the search on the date of the search.
• G.C. v. Owensboro Public Schools, 711 F.3d 623 (6th Cir. 2013)
Search and Seizure Cases
• School District in Pennsylvania
• School policies allowed students to carry cell phones but students could not use or display cell phones during school day. Student was in class and his cell phone fell out of his pocket. Teacher confiscated the phone and gave the phone to the assistant principal and the two then accessed student’s contacts and called 9 other students to see whether those students were using their cell phones at school and then viewed student’s text messages and voice mail and then held a conversation with student’s younger brother using the phone’s text messaging feature without identifying who they were.
• How did the court rule?
Search and Seizure Cases
• Court found violations of 1st amendment, 4th amendment, and wire tapping law!
• Get your checkbooks ready!!!
Search and Seizure Cases
• School District in Virginia
• Parents (multiple) report to school staff seeing a long-haired student on the bus smoking marijuana and staff identified a student as the one indicated in the reports. A school administrator searched the student’s phone, backpack, shoes, pockets and conducts a pat down.
• How did the court rule?
Search and Seizure Cases
• Search of the student’s cell phone was not reasonable (violated the 4th amendment) because the search of the phone exceeded the scope of a reasonable search initiated to find drugs on student suspected of using drugs that morning. No reasonable school administrator could believe that searching a student’s cell phone would result in finding marijuana, the purpose for which the administrator initiated the search.
• Search of the student’s person (by pat down), student’s backpack, shoes, and pockets were all reasonable in scope because these are likely places where drugs might be hidden. Gallimore v. Henrico County School Board, 38 F.Supp.3d 721, 725 (E.D.Va. 2014)
• KIK MESSENGER
• FREE APP FOR TEXTING
• STRANGER DANGER IS AN ISSUE
• ONE OF THE MOST COMMON APPS LAW
ENFORCEMENT DEALS WITH
• WHAT’S APP
• FREE APP FOR TEXTING
• USES DATA – NOT – TEXT MESSAGING
• FOR USERS 16 AND OVER – BUT – LOTS OF
VERY YOUNG USERS
• CAN BE OVERWHELMING – ACCESSES YOUR
CONTACTS
• GROUPME
• FREE APP ALLOWING USERS TO SHARE INFO
(PICS, VIDS, ETC.) TO GROUP MEMBERS
• TINYCHAT
• FREE APP FOR INSTANT MESSAGING WITH
VIDEO CHAT
TEXTING APPLICATIONS
MICRO-BLOGGING APPLICATIONS
• FREE APP FOR STAYING CONNECTED WITH FRIENDS
• DANGERS ARE MINIMAL BUT STILL PRESENT
• CYBER-BULLYING ISSUES
• TUMBLR
• FREE APP – STREAMING SCRAPBOOK OF TEXT, PHOTOS, VIDS
• PORNOGRAPHY HEAVY
• FREE MICROBLOGGING APP
• USERS CAN POST MESSAGES, VIDS AND PICS
• CYBER-BULLYING ISSUES
• FREE APP THAT ALLOWS USERS TO SHARE PICS AND
VIDS
• SUCCESS IS MEASURED BY “LIKES”
• MUSICAL.LY• FREE APP DESIGNED FOR VIDEO AND PERFORMANCE
SHARING
• NOT SUITABLE FOR YOUNG TEENS
LIVE-STREAMING APPLICATIONS
• PERISCOPE
• FREE APP FOR STREAMING LIVE
• VERY DANGEROUS – SEXTING & SEXTORTION
• USES MINOR’S PHONE TO BROADCAST
LIVE – WORLDWIDE
• ANONYMITY ISSUES
• YOUNOW
• FREE APP FOR STREAMING LIVE
• SAME DANGERS AS PERISCOPE
• OVER-SHARING OF PERSONAL INFO
• LIVE.LY• FREE APP FOR STREAMING LIVE
• SAME DANGERS AS PERISCOPE AND
YOUNOW
• ASSOCIATED WITH MUSIC.LY
SELF-DESTRUCT / SECRET APPS
• SNAPCHAT
• FREE APP THAT ERASES MESSAGES, PICS, VIDS
AFTER SET TIME PERIOD
• VERY DANGEROUS
• DESIGNED TO HIDE INFORMATION
• BURN NOTE
• FREE APP THAT ERASES MESSAGES AFTER A SET
PERIOD OF TIME.• PRACTICALLY ENCOURAGES POOR BEHAVIOR
• CHILDREN COMMUNICATE COVERTLY
• FALSE SENSE OF SECURITY
• WHISPER
• FREE APP THAT ACTS LIKE A SOCIAL
CONFESSIONAL
• CONFESSIONS CAN INCLUDE PICS
• CYBER-BULLYING DANGERS
• YIKYAK
• FREE APP THAT LETS USERS POST COMMENTS
TO CLOSEST YIKYAK USERS
• DANGERS – SHARES LOCATION
• CYBER-BULLYING / EXPLICIT CONTENT
PROBLEMS
CHATTING / MEETING APPS
• MEET ME
• FREE APP – NOT FOR DATING BUT FOR MAKING
NEW FRIENDS
• OPEN NETWORK
• LOCATION CAN BE SHARED
• REQUIRES LOTS OF PERSONAL INFORMATION
• SEVERAL CRIMINAL CASES
• OMEGLE
• FREE APP THAT PUTS STRANGERS TOGETHER IN A
VIDEO OR TEXT CHAT ROOM
• NOT FOR CHILDREN
• ANONYMITY ISSUES
• TINDER
• FREE APP – DATING AND MESSAGING
• BASICALLY DESIGNED TO INCREASE REAL-LIFE
SEXUAL ENCOUNTERS
• NOT FOR CHILDREN
Sex and Tech: Results from a Survey of Teens and Young Adults, Cosmo Girl and The National Campaign to Prevent Teen and Unplanned Pregnancy
Definition:
Willful and repeated harm inflicted through the use of computers, cell phones, and other electronic devices is…
Cyberbully Occurs Through…
Email or instant messages sent directly to a child.
Hurtful comments sent or posted about a person.
By assuming a person’s identity.
Cyberbully Occurs Through…
Blog (Bash Boarding)
Create Web sites (Ex., Hot or Not, Sexual Orientation)
Send pictures (Ex., Locker room photos)
Send spyware and/or hack programs
And there are more methods
to cyberbully.
The Reality of Cyberbullying
• 20.8% of kids have been bullied while online• 14.3% have received mean or hurtful comments• 13.3% have had rumors spread about them online• 8.4% have been threatened over text• 6.7% have had stolen passwords/someone impersonate them• 5.0% had a mean or hurtful picture posted
Cyberbullying Research Center, 2010, Hinduja, S. and Patching, J.W.
Traditional Bullying
ARKANSAS ANTI-BULLYING STATUTE
A.C.A. § 6-18-514
• “Bullying” means the intentional harassment, intimidation, humiliation, ridicule, defamation, or threat or incitement of violence by a student against another student or public school employee by a written, verbal, electronic, or physical act that causes or creates a clear and present danger or may address an attribute of the other student, public school employee, or person with whom the other student or public school employee is associated and that causes or creates actual or reasonably foreseeable:
ARKANSAS ANTI-BULLYING STATUTE
A.C.A. § 6-18-514
• A school principal or his or her designee who receives a credible report or complaint of bullying shall promptly investigate the complaint or report and make a record of the investigation and any action taken as a result of the investigation.
• The board of directors of every school district “shall” adopt policies to prevent bullying.
CYBER BULLYING OFF CAMPUS
• An 18 year old high school student in Mississippi published a rap song on Facebook and YouTube while off campus. The rap included the N-word, the B-word, the S-word, the P-word, the MF-word, and the F-word. The rap further was defamatory to identifiable people, accusing two coaches of sexual misconduct with students, comments on the size of the breasts of the one of the coach’s wives and suggesting that one of the coaches will “get a pistol down your mouth/Pow.”
• The school expelled the student and the student sued alleging violation of his First Amendment rights.
CYBER BULLYING OFF CAMPUS
• The court recognized the digital world and social media presents new challenges for school administrators.
• The court noted the large increase in school violence and that the student’s intent, while the rap was produced and recorded off campus, was intentionally directed at the school community.
• The court recognized that the cornerstone of public education is the teacher and coach, and any act which threatens, harasses, or intimidates the educator impedes if not destroys the ability to educate.
• A “student's threatening, harassing, and intimidating a teacher inherently portends a substantial disruption.”
• Bell v. Itawamba Cnty. Sch. Bd., 782 F.3d 712 (5th Cir. Miss. 2015)
CYBER BULLYING OFF CAMPUS
• Generally, “school officials can suspend or expel a student for conduct outside of school hours when it is reasonably necessary for the punished student's physical or emotional safety or for the safety and well-being of other students, teachers, or public school property.”
• Smith v. Little Rock School Dist., 582 F. Supp. 159 (E.D. Ark. Mar. 8, 1984)
CYBER BULLYING OFF CAMPUS
• ASBA Model Policy 4.17- Student Discipline
• The District’s administrators may also take disciplinary action against a student for off-campus conduct occurring at any time that would have a detrimental impact on school discipline, the educational environment, or the welfare of the students and/or staff. A student who has committed a criminal act while off campus and whose presence on campus could cause a substantial disruption to school or endanger the welfare of other students or staff is subject to disciplinary action up to and including expulsion.
QUESTIONS AND
COMMENTS
