Legality of full search + seizure of cellphones and contents

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pastrybot
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Legality of full search + seizure of cellphones and contents

Postby pastrybot » Mon Nov 23, 2009 3:51 am UTC

A bit of background: my friend is attending high school in New Jersey. While he's not in the affected school district, he lives right next to it, so he brought this to my attention.

FRHSD (Freehold NJ Regional High School District) has an apparent district-wide ban on phones. When one is seen, it'll be picked up by an administrator. Not only do they confiscate them, though, they look through the contents and data of the phone, apparently for "pornography" and other "illegal" things.

This is where my legal questions begin: how legal is this, and if it is, WHY? I'm relatively familiar with the basic search and seizure law, but I'm not sure of how much it applies to non-police and law enforcement entities, like a school. The closest case law I can find is New Jersey vs. T. L. O., a case brought to the Supreme Court regarding the search and seizure of a girl's purse, in which marijuana paraphernalia was found, and she was promptly arrested. However, this case deals with definite probable cause—smoking—while my friend's case does not. As far as I know, a cell phone is not probably cause for illegal activity.

So, how legal is this and how much of a grey area is it?

(edited crosspost from Reddit)
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MiB24601
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Re: Legality of full search + seizure of cellphones and contents

Postby MiB24601 » Mon Nov 23, 2009 7:39 am UTC

While New Jersey v. T. L. O., which was decided back in 1985 is still binding precedent, the most recent case by the US Supreme court regarding school searches is Safford Unified School District v. Redding, which was decided in June of this year. Safford affirmed TLO in stating that searches of students by school administrators require only reasonable suspicion. Also, although United States v. Arnold is not binding-precedent in the third circuit (which includes New Jersey), Arnold along with Safford would probably be combined to create a strong argument allowing school officials to search digital containers (i.e. a cellphone) that have been confiscated.
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Chen
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Re: Legality of full search + seizure of cellphones and contents

Postby Chen » Mon Nov 23, 2009 6:45 pm UTC

I think the key in those other cases is reasonable suspicion. While I think its within the school's rights to confiscate the cell phones, I don't suspect they would have reasonable suspicion, in general, to then look through them for illegal/pornographic materials. Now I suppose if they caught someone talking on the phone saying stuff to indicate they would be sending them, via the phone, something illegal, there might be reasonable suspicion. But just confiscating the phone wouldn't be I'd say.

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Re: Legality of full search + seizure of cellphones and contents

Postby Durin » Mon Nov 23, 2009 9:35 pm UTC

As said above, only reasonable suspicion is required within schools. So as it stands now this is completely legal. I wouldn't personally call having a phone out as reasonable suspicion to tear apart a phone for illicit materials, however.

Mr. Freeman
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Re: Legality of full search + seizure of cellphones and contents

Postby Mr. Freeman » Tue Nov 24, 2009 1:38 am UTC

Something similar happened near where I live at Monarch high school (in Colorado). Long story short, the ACLU sent them a letter informing them of the law and the school stopped the practice immediately.
If this is happening to you or a friend, write to your ACLU representative at once and inform them of the situation.

Link:
http://www.aclu.org/technology-and-libe ... es-student

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Re: Legality of full search + seizure of cellphones and contents

Postby MiB24601 » Tue Nov 24, 2009 2:30 am UTC

Mr. Freeman wrote:Something similar happened near where I live at Monarch high school (in Colorado). Long story short, the ACLU sent them a letter informing them of the law and the school stopped the practice immediately.


In that case, the school was violating a Colorado statute. The ACLU's letter didn't bring up constitutional grounds. In this case, while New Jersey does have a pretty strict wiretapping act (N.J. Stat. § 2A:156A), the language is written in such a way that FRHSD is most likely in the clear.
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Re: Legality of full search + seizure of cellphones and contents

Postby Sir_Elderberry » Tue Nov 24, 2009 3:47 am UTC

Yeah, legally, schools have been given pretty broad rights pertaining to student searches. Anyone know what the law is on if your phone requires a code to unlock? I wouldn't think they'd have the right to force you to provide the code.
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Re: Legality of full search + seizure of cellphones and contents

Postby MiB24601 » Tue Nov 24, 2009 4:43 am UTC

Sir_Elderberry wrote:Anyone know what the law is on if your phone requires a code to unlock? I wouldn't think they'd have the right to force you to provide the code.


That's still being hammered out. United States v. Boucher (2007) (AKA Boucher I) held that producing a passphrase could constitute self-incrimination. United States v. Boucher (2009) (AKA Boucher II) had the opposite holding. Right now, the most precedential US Supreme Court case appears to be Fisher v. United States which promulgated the “act of production” doctrine. Under the “act of production” doctrine, to receive fifth amendment protection, the production of documents must be (1) compelled, (2) testimonial and (3) incriminating. Plainly speaking, this means that every decision of whether it is self-incriminating to provide a provide a password must be examined on a case-by-case basis.

Even more plainly speaking, if it comes up and you don't provide your password, there may be a Supreme Court case named after you in about 10 years.
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Re: Legality of full search + seizure of cellphones and contents

Postby Levi » Mon Nov 30, 2009 3:27 am UTC

MiB24601 wrote:
Sir_Elderberry wrote:Anyone know what the law is on if your phone requires a code to unlock? I wouldn't think they'd have the right to force you to provide the code.


That's still being hammered out. United States v. Boucher (2007) (AKA Boucher I) held that producing a passphrase could constitute self-incrimination. United States v. Boucher (2009) (AKA Boucher II) had the opposite holding. Right now, the most precedential US Supreme Court case appears to be Fisher v. United States which promulgated the “act of production” doctrine. Under the “act of production” doctrine, to receive fifth amendment protection, the production of documents must be (1) compelled, (2) testimonial and (3) incriminating. Plainly speaking, this means that every decision of whether it is self-incriminating to provide a provide a password must be examined on a case-by-case basis.

Even more plainly speaking, if it comes up and you don't provide your password, there may be a Supreme Court case named after you in about 10 years.


That sounds pretty neat. I wonder how much it would cost.

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Re: Legality of full search + seizure of cellphones and contents

Postby hintss » Mon Nov 30, 2009 6:03 am UTC

in my school district, it is legal for teachers to search backpacks (after a lawsuit where a family sued a teacher for searching the kids backpack when the teacher thought the student had cocaine (they did)). Now it is legal for search and seizure since the teachers are acting as your legal guardians during school hours

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Re: Legality of full search + seizure of cellphones and contents

Postby Internetmeme » Thu Dec 03, 2009 12:44 am UTC

hintss wrote:in my school district, it is legal for teachers to search backpacks (after a lawsuit where a family sued a teacher for searching the kids backpack when the teacher thought the student had cocaine (they did)). Now it is legal for search and seizure since the teachers are acting as your legal guardians during school hours

Hey, have the results from the Supreme Court ruling on that case where the girl was strip-searched for ibuprofen (which takes more than is in the bottle to overdose)?
Spoiler:

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Re: Legality of full search + seizure of cellphones and contents

Postby MiB24601 » Thu Dec 03, 2009 2:39 am UTC

Internetmeme wrote:Hey, have the results from the Supreme Court ruling on that case where the girl was strip-searched for ibuprofen (which takes more than is in the bottle to overdose)?


Yeah, that was Safford Unified School District v. Redding, which I referred to in my first post. The court held that while school searches merely require reasonable suspicion, a strip search was not a reasonable search as it was not conducted in a way that reasonably related in scope to the circumstances which justified the action in the first place.
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Re: Legality of full search + seizure of cellphones and contents

Postby RogerMurdock » Fri Dec 04, 2009 2:29 am UTC

We had a similar situation last year at my school, but the practice seems to have died out after heavy complaints about it to the administration. Basically a certain dean was confiscating phones and looking through them and whatnot and getting kids in trouble for completely hilarious things. For example a girl at one point was joking about a blowjob or something to a guy she knows, and the administration called both of their parents to alert them of "suspicious behavior". Of course there were no blowjobs and the whole thing was just embarrassing for the administration after the parents on either side chewed them out. It was also way too tempting to send texts to phones that were already confiscated, so the administration would be getting every manner of "SHIT PISS COCK BALLS" messages and fake drug deals and what not on these phones. It got really really funny.

I looked up the legality of it while the frenzy was on and I came to about the same conclusion you guys did: it's legal if they have reason to suspect. Of course in my opinion there is no correlation between having cell phone out = illegal activities on phone....but I'm sure they could argue the case. Luckily the principle of our school came around to see the the practice was silly most of the time, and from then on asked if you would like to passcode/take the battery out of your phone before it was confiscated. Haven't had a problem since, though the school system seems to have just wholeheartedly given up on policing cell phones/ipods this year. It looks like we broke their spirit :)

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Re: Legality of full search + seizure of cellphones and contents

Postby Ixtellor » Fri Dec 04, 2009 8:02 pm UTC

Working in a school and losing the 'cell phone war' for many years now:

RogerMurdock wrote:it's legal if they have reason to suspect


This.

Reasonable suspicion = ok with no problems.
What is probably the worst case scenario for a kid minding his own business with his phone, is if another student gets caught with illegal content (99% of the time its naked photos of minors), they can then legally trace to see who else received the same content. So authorities can come confiscate your phone and see if you still have the content. (deletion prior too = innocence, since you can claim it was unsolicited)



Ixtellor

P.S. The Cell Phone War is over, and the kids won. Picking up phones is not worth the hassle at this point.

P.P.S. This varies from district to district with some instituting $100+ fines for texting on campus. This has held up in court and been a magnificant weapon. -- the problem is parental involvement -- they want to be able to get hold of their kids, and cry bloody murder when you take their 'precious'es phonzeses.


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Re: Legality of full search + seizure of cellphones and contents

Postby Mr. Freeman » Sat Dec 05, 2009 11:40 am UTC

Ixtellor wrote:the problem is parental involvement -- they want to be able to get hold of their kids, and cry bloody murder when you take their 'precious'es phonzeses.


Well, on one hand you have the parents that think their child is more important than everyone else and make a bunch of stupid complaints to the schools regarding allowing their child to use their cell phone in class.

On the other hand you have the fact that most schools don't give two shits about students' rights and rarely act logically in a high stress or high profile situation. Thus, cell phones provide the means for the students to communicate with police/parents when there's stuff happening that the school is going to keep secret from everyone because they believe that they're allowed to make all manner of decisions regarding the students.
For example:
1. Teachers are having a sick-out (all the teachers call in sick on the same day, like a strike but not quite) and we're sitting in the gym and they won't let us leave. Come pick me up.
2. Madman shooting up the school, send police.

There was one situation that I remember seeing on some news channel (I've since forgotten what channel) regarding some idiots setting off a homemade smoke bomb in a school. The whole school was evacuated, but parents weren't notified and the students were required to sit at the evac site until their parents showed up. Most of the parents were complaining because they heard about it from the media rather than the school. The only reason anyone knew anything at all is because some of the students had cell phones and could communicate with the outside.

The school would have been plenty happy to sit with their heads up their ass until parents started calling the police that evening because their kids hadn't come home from school yet.

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Re: Legality of full search + seizure of cellphones and contents

Postby ikrase » Wed Dec 23, 2009 1:58 am UTC

Can schools even fine you money? Mine doesn't.


The "naked minors" is a dumb problem born out of the assumption that everything really does change instantaneously when you get 18.

At my school, nobody cares about phones unless you use them in class (and sometimes that's OK ie photographing the blackboard). Then typically they get confiscated. You get them back a week later.
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Re: Legality of full search + seizure of cellphones and contents

Postby Allium Cepa » Thu Dec 24, 2009 12:46 am UTC

This is why I take the battery out of my phone when it gets taken.
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Re: Legality of full search + seizure of cellphones and contents

Postby gereffi » Thu Dec 24, 2009 2:47 am UTC

At a friend's school, the students are allowed to use cell phones whenever they want, as long as they aren't used for cheating or causing a disturbance to the other students. They can talk on them in the hallways, text during class, take pictures of the whiteboard, etc. I guess they know kids are going to do it, so they might as well work with the kids on it.


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