Laptop Surveillance in Schools: An Invasion of Privacy and a Violation of Trust
Giovanni Gagliardi via Unsplash
Since the pandemic began, schoolwork has become increasingly digital for many students. While personal computer use had been on the rise throughout the 2010s, the turn to all-remote learning only threw fuel on the fire, and many schools now expect students to have some kind of device–a laptop, a Chromebook, or a tablet–to complete assignments in-school and at home. As a result, many school districts have started issuing students devices.
With the rise of student laptop use, however, has come other problems: cyberbullying and online cheating. Almost two-thirds of teenagers in the US report having been bullied online. These, of course, are just old problems repackaged with new devices. But overzealous administrators–facing pressure from policymakers and anxious parents–have started installing surveillance software like GoGuardian and Gaggle on student devices.
The problem is, the means for dealing with these problems is about 10 years old. While policymakers and administrators (millenials and Gen X) grew up in the computerized world–think about logging into AIM on dial-up or Facebook on your family’s single home computer–students today rely much more on their phones than their computers.. And only 10% of Gen Z’ers said that they would come to an adult for help with cyberbullying. Efforts to fight cyberbullying through personal laptop surveillance are likely to be minimally effective (since most students would be using social media on their phones) and may deteriorate trust between teenagers and adults–making them even less likely to come to an adult for help.
Given that the benefits of such surveillance are suspect, administrators should carefully consider the grave drawbacks to such software.
A Constitutional Right to Privacy
It has been my experience that most administrators, teachers, students, and parents don’t really understand what their constitutional rights are regarding this kind of surveillance. And for many, they don’t understand the extent to which school administrators can reach into the most intimate details of their kids’ (and families’) lives through this kind of software. Programs like GoGuardian can push websites to students’ screens, control their clicks, and even force-open cameras and meeting software like Zoom (a feature that was later discontinued). And administrators oftentimes obfuscate–or simply don’t reveal–the extent of their surveillance capabilities, or assure parents that they would never do something, even though they very well have the capacity to do it.
Fears of overreach are not merely hypothetical or hyperbolic. Take the 2011 case of Lower Merion School District just outside of Philadelphia. One school, in an effort to try to find missing laptops, remotely and surreptitiously activated cameras on school-owned laptops. Using these cameras, the school took over 66,000 images—many of them in students’ homes, including some pictures of students in their beds. The school eventually settled for six figures.
Unfortunately, there has been little clarity over schools’ surveillance powers in the last 10 years, despite the meteoric rise in student technology use. As a result, schools are often left claiming extreme power to search students, using cases that were decided before many of their students were even born.
Students’ right to privacy comes from the 4th amendment as interpreted in the 1985 case New Jersey v. TLO. Prior to this landmark case, students had few rights to privacy. While people outside of schools may not be searched without “probable cause” (a reasonable person would come to the conclusion that a crime was probably being committed), schools were able to act as students’ parents, searching them whenever they wanted. In other words, school searches weren’t even a “search” under the constitutional sense–it would be the same thing as your parents going through your backpack.
TLO involved a 14-year-old student who was caught smoking in a bathroom. The assistant principal used this as a reason to search the student’s purse, revealing various drug paraphanelia along with a list of students who owed her money. While the court sided with the school, saying that the search was allowed, it also concluded that schools must have at least reasonable suspicion (more than a hunch, but less than probable cause–specific articulable facts that imply a student was committing a crime or violating a school rule) to search a student, and that searches must be both reasonable in their inception and in their scope (how far a school can go in a search–for instance, a 2009 case ruled that a strip search of a student to try to find prescription-grade ibuprofen was not reasonable). In short, the court ruled in TLO:
“[T]he accommodation of the privacy interests of schoolchildren with the substantial need of teachers and administrators for freedom to maintain order in the schools does not require strict adherence to the requirement that searches be based on probable cause to believe that the subject of the search has violated or is violating the law. Rather, the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search.”
So, at what point does laptop surveillance become a “search” that is constitutionally protected?
Are laptop searches a “search” under the 4th amendment?
When does something become a search? In order for something to be a search under the 4th amendment, someone must have a reasonable expectation of privacy. Schools have been quick to reference cases like Shoemaker v. State, in which the court found that students did not have a reasonable expectation of privacy in school owned lockers and therefore even the lower TLO precedent didn’t apply—administrators could search the lockers whenever they wanted, without warning, and without reasonable suspicion. According to Shoemaker, students don’t have a reasonable expectation of privacy with their lockers because:
“Lockers remain under the jurisdiction of the school even when assigned to an individual student. . . . Searches of lockers may be conducted at any time there is reasonable cause to do so, regardless of whether the students are present. . . .”
On the other hand, schools may not search through a student’s personal cell phone without reasonable suspicion. In G.C. v. Owensboro Public Schools (2013), school officials confiscated a student’s phone and proceeded to read through all of his text messages because the school was concerned that the student might be using drugs or might be suicidal. The Sixth Circuit Court of Appeals found that the school needed reasonable suspicion and did not have it in this case. In all likelihood, any kind of surveillance of a student’s personal device (for schools that have students bring their own laptops, for example) by a school would require reasonable suspicion.
Outside of schools, the Supreme Court ruled in Riley v. California (2014)--a case dealing with an accused gang member whose phone was seized and searched by police–that searches of cell phones go “far beyond” other searches. And this makes sense: cell phones can contain incredibly intimate and personal information about a person’s life.
In all likelihood, a school-owned laptop falls somewhere in between a school-owned locker and a personal cell phone. According to the Rhode Island ACLU:
“[L]ockers are actually in school at all times. School-loaned devices are designed for portability — and students are encouraged to use them at home. In addition to the obvious Fourth Amendment implications of such a search, there are First Amendment concerns as well. Unlike a locker, a search of a computer can reveal tons of documents, files, messages, social media activity, and other classic elements of “speech.”
The closer the computer gets to a student’s private life, the higher expectation of privacy a student may have, even if the device is owned by the school. In researching this article, I spoke with a former prosecutor-turned-defense-attorney in Texas (who wished to remain anonymous). He said that schools and students need to consider the following when establishing whether or not a student has an expectation of privacy on a school laptop:
“Do the students have—or obtain—a property or possessory interest in the computers, or is it clear that they a purely on loan from the school? Does the student have exclusive control over the laptop, or can other students or faculty members use it, either through the same login or different login credentials? Do students regularly treat the laptops as private devices, or do they usually leave them unlocked or otherwise open to others' viewing them? Do students ordinarily put the laptops to private use as well as school use? Are they warned against doing that?”
In other words, the more that the student is permitted by the school to treat the device as their own, personal device, the higher their expectation of privacy. When I was growing up, the only school-owned devices we used were desktop computers at school. Students would certainly have no expectation of privacy on these. If the student is bringing the device home, keeping it over the summer, and potentially keeping it after graduation, however, the student may start to assume some expectation of privacy. That being said, for minimally intrusive searches (like monitoring a student’s search history), students likely have little expectation of privacy.
As revealed in Lower Merion, however, oftentimes the problematic element of the software is how it is used, not its mere existence—that is, what exactly is being searched. A student may not have a reasonable expectation of privacy in their internet searches on a school laptop, even at home; but they certainly do have an expectation of privacy that their cameras or microphones won’t be remotely activated by the government, even if it is a school-owned device. But does the mere existence of this capability on a laptop violate the fourth amendment? Schools choosing to use this kind of software would be smart to make sure the software has no capability of recording a student’s home, even inadvertently. (This standard was further expanded in a recent case involving an Ohio college student whose room was scanned by a computer before taking a test; the court ruled in the student’s favor.)
Is it even a good policy choice?
That being said, even if monitoring students’ internet use is technically constitutional–as long as it is limited in scope and prevents things like cameras and microphones from being activated–is this something schools should even be interested in doing?
One parent I talked to at Research Triangle High School, a public charter school in Durham, North Carolina that recently started requiring students to use GoGuardian, said: “This software feels like a technical solution to a human problem.”
Students will, inevitably, use devices for personal use. This will, inevitably, subject poor students—who may not own a different computer—to the most surveillance. If schools are passively tracking and recording students’ computer use that may later be referenced should the school wish, it may create an easily obtainable trail that could be used against students’ later.
Take, for instance the Oklahoma teen whose Facebook messages were recently turned over to law enforcement seeking to prosecute her for going out of state for an abortion. If police suspect a student may have obtained an abortion—or that their parents may be trying to get the child gender-confirming therapy—could they subpoena school records of students’ Google searches that may reveal students’ private actions?
This is not just a hypothetical. “Forty-four percent of teachers reported that at least one student at their school has been contacted by law enforcement as a result of behaviors flagged by the monitoring software.” And there have already been reports of students who were outed as being gay to their parents as a result of their computer use.
Schools claim that it’s about protecting students from cyberbullying or potential school shootings; in reality, it is typically used for cheating. We should all be skeptical of giving government officials this much authority to search the private lives of our students. One parent at RTHS said, “But what really will it be used for? Identifying suicidal ideation before it comes to fruition is what they've said. Everyone feels/knows that it's to prevent cheating. Students have been cheating since the beginning of school. They will continue to cheat despite Go Guardian.” And will it actually even have the positive effects that schools claim it will? “Students will absolutely find a way around this,” the RTHS parent says.
Finally, the software has the potential to exacerbate inequalities that already exist. According to a letter authored by Sen. Elizabeth Warren addressed to school surveillance companies:
“Recent studies have highlighted numerous unintended but harmful consequences of student surveillance programs that target vulnerable populations. Artificial intelligence and algorithmic systems frequently mischaracterize students’ activity and flag harmless activity as a “threat.” Students from minority or marginalized communities, including students of color and LGBTQ+ students, are far more likely to be flagged. Research has shown that language processing algorithms are less successful at analyzing language of people of color, especially African American dialects. This increases the likelihood that Black students and other students of color will be inappropriately flagged for dangerous activity.”
Additionally, the use of these tools may break down trust within schools, prevent students from accessing critical health information, and discourage students from reaching out to adults for help, potentially increasing the risk of harm for students. According to mental health advocates and experts, LGBTQ+ students are more likely to seek help online.
Conclusion
Administrators need to stop disingenuously claiming that searching school owned devices are the same as searching a locker. Laptop surveillance reveals way more intimate information about student’s private lives and has the potential to be incredibly invasive, by design. They need to start engaging with the real privacy concerns that these searches bring up and critically think about the impact they will have on students’ privacy.
When crafting policies around laptop surveillance, schools need to have limited access to students’ private lives and need to be transparent about what data is collected, when it is collected, where it is collected, and for how long it is stored.
If schools are supposed to prepare students for life, what lessons are they learning through constant surveillance? They learn not to trust adults and to fear authority; they don’t develop their own ability to self-regulate or to develop their own moral codes. Schools are taking very real, human issues—cheating, bullying—and are merely sticking a band-aid on them rather than addressing the root of the problems. Schools, of course, have an obligation to keep students safe, but do these kinds of measures actually increase safety, and what is their cost?
