Can a School Official Search My Child’s Facebook Message Inbox?

Application of the Fourth Amendment in School

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. – U.S. Constitution, Fourth Amendment. Familiarity with the criminal standard of applying the Fourth Amendment is commonplace, but as it applies in the school context, the requirements are rather different.

As articulated in New Jersey v. T.L.O., “[i]n carrying out searches and other disciplinary functions pursuant to [school disciplinary] policies, school officials act as representatives of the State, not merely as surrogates for the parents,” and thus are not immune from Fourth Amendment requirements.[1] In addition, students are not left without a legitimate expectation of privacy at school.[2] However, a teacher or administrator need not obtain a warrant, as police must, prior to initiating a search of a student or his or her property:

Obtaining a Warrant Prior to a Search

It is evident that the school setting requires some easing of the restrictions to which searches by public authorities are ordinarily subject. The warrant requirement, in particular, is unsuited to the school environment: requiring a teacher to obtain a warrant before searching a child suspected of an infraction of school rules (or of the criminal law) would unduly interfere with the maintenance of the swift and informal disciplinary procedures needed in the schools.[3]

Thus, the standard set forth is whether the teacher or administrator’s in-school search was reasonable in light of all circumstances.

The Fourth Amendment in the New Age of Technology

However, First Amendment litigation has presented the complications that have arisen from the rise of the Information Age. Such can be seen here: because of technological advances, Fourth Amendment jurisprudence and the applicability of the warrant requirement and reasonableness test are becoming murkier waters, leaving federal appellate courts in the driver’s seat of establishing the new rules and boundaries.

Thus, for example, the 6th Circuit Court of Appeals recently equated emails and traditional forms of communication, noting that “[g]iven the fundamental similarities… it would defy common sense to afford emails lesser Fourth Amendment protection.”[4] Likewise, the 5th and 9th Circuits ruled in two separate cases that individuals enjoy a reasonable expectation of privacy in personal email accounts as they do traditional mail.[5] More specifically, a District Court of California equated private Facebook messages with email.[6]

A Relevant Case

So why is it important for parents and students to know this? Consider the case of R.S., a student who was punished for content she posted, using her personal computer at home, which was critical of a hallway monitor. R.S. additionally claimed that she was forced to give school administrators her personal email and Facebook usernames and passwords so they could search her private messages containing “naughty” conversations with a male classmate.

As with the First Amendment claim, the District Court of Minnesota denied the defendant school district’s motion to dismiss, noting that R.S. had “a reasonable expectation of privacy to her private Facebook information and messages,” and it could not discern “what, if any, legitimate interest the school officials had for perusing R.S.’s private communications.”[7] How this case will proceed, and its implications in other jurisdictions including Connecticut, will be particularly noteworthy.

If your child is subject to a search at school that is beyond the bounds permitted under the law, it is imperative that you consult an experienced school law practitioner to understand your rights and courses of action.

[1] New Jersey v. T.L.O., 469 U.S. 325, 337 (1985).

[2] Id. at 739.

[3] It. At 733.

[4] United States v. Warshak, 631 F.3d 266, 285-86 (6th Cir. 2010).

[5] See, e.g., United States v. Zavala, 541 F.3d 562, 577 (5th Cir. 2008); United States v. Forrester, 512 F.3d 500, 511 (9th Cir. 2008).

[6] Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965, 991 (C.D. Cal. 2010).

[7] R.S. et al v. Minnewaska Area School District No. 2149 et al, Civ. No. 12-588 (MJD/LIB) at 31. Accessed October 3, 2012: http://law.justia.com/cases/federal/district-courts/minnesota/mndce/0:2012cv00588/124914/28/

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