Can You Hear Me Now?
Legal Implications for Searching Student Cell Phones
By Lisa Swem
Attorney, Thrun Law Firm, P.C.
Most schools regulate student cell phone use. Students who violate cell phone rules may be subject to disciplinary consequences, including confiscation of the cell phone. May school officials lawfully “search” the confiscated cell phone to look at stored text messages, photographs, videos, and logs of incoming and outgoing calls? Clearly, the circumstances of the search must satisfy the T.L.O. standard. Not as clear, however, is whether such a search violates federal or Michigan laws regarding stored electronic communications.
Search and Seizure. In New Jersey v T.L.O., 469 US 325 (1985), the United States Supreme Court explained how the Fourth Amendment applies when school administrators carry out searches and seizures to investigate alleged violations of school rules. The Court explained that a search is reasonable only if it is “justified at its inception” and “reasonable in its scope.” The Court defined the reasonableness test as follows:
“[A] search of a student by a teacher or other school officials will be ‘justified at its inception’ when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. Such a search will be permissible in its scope 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.”
Accordingly, the determination of whether the T.L.O. standard has been met will depend on the facts of the particular situation.
Case Decision. In Klump v Nazareth Area Sch Dist, 425 F Supp 2d 622 (ED Pa, 2006), a federal district court denied the school’s motion to dismiss a lawsuit filed by a student whose cell phone was searched. Students at Nazareth Area High School (Pennsylvania) were permitted to carry, but not use or display, cell phones during school hours. When Christopher Klump’s cell phone fell out of his pocket, a teacher confiscated the phone. Subsequently, the teacher and the Assistant Principal used Christopher’s phone to call nine students listed in his phone directory to determine whether they were also violating the school’s cell phone policy. The teacher and AP next accessed Christopher’s text messages and voice mail. Finally, the two used the cell phone, without identifying themselves, to have an Instant Messaging conversation with Christopher’s younger brother.
Christopher’s parents filed a 10-count lawsuit against the school district and school officials, seeking compensatory and punitive damages for the alleged unconstitutional search, violation of the Pennsylvania Wiretapping and Electronic Surveillance Control Act, invasion of privacy, and defamation. In response, the defendants filed a motion to dismiss the lawsuit.
Although some parts of the lawsuit were dismissed, other claims were found to be viable. The court ruled that the student had stated a claim for the alleged violation of his right to be free from an unreasonable search. While school officials were justified in seizing Christopher’s cell phone for violation of school policy, there was no basis for them to search the text and voice mail messages stored on the phone. As for the Pennsylvania Wiretap Act claim, the court ruled that the student’s case could go forward based on the claim of unlawful access to the stored voice mail and text message communications. The parties later settled the lawsuit for an undisclosed amount of money.
Michigan and Federal Statutes. The unauthorized access to a stored electronic communication could trigger the violation of Michigan and Federal criminal statutes. The Michigan Penal Code, in part, states:
(2) A person shall not willfully and maliciously read or copy any message from any telegraph, telephone line, wire, cable, computer network, computer program, or computer system, or telephone or other electronic medium of communication that the person accessed without authorization.
(3) A person shall not willfully and maliciously make unauthorized use of any electronic medium of communication, including the internet or a computer, computer program, computer system, or computer network, or telephone.
MCL 750.540(2)-(3) (emphasis supplied)
Likewise, the federal Stored Wire and Electronic Communications Act has penalties for accessing, without (or in excess of) authorization, an electronic communications service facility and thereby obtaining access to a wire or electronic communication in electronic storage. 18 USC § 2701(a).
While the statutory language could be broad enough to cover the unauthorized reading of text messages on a cell phone, there are no reported case decisions addressing this issue under the Michigan or federal statutes.
Conclusion. Administrators may lawfully confiscate student cell phones in circumstances where school rules are violated. For Fourth Amendment purposes, school officials should assume that the student has a reasonable expectation of privacy as to the information stored in the cell phone, e.g., phone numbers, messages (text and voice), photographs, videos. Accordingly, the ability to lawfully search the cell phone is contingent upon satisfying the T.L.O. reasonable suspicion and scope standards. Nonetheless, it remains to be seen as to whether an unauthorized search of a student’s cell phone triggers a violation of the Michigan or federal statutes addressing stored electronic communications. Be careful out there!
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