Let’s face it; our lives now revolve around technology. Computers, laptops, tablets, the internet, phones etc. are all here to stay and will only become bigger parts of our lives going forward. Many questions are beginning to emerge as a result of technology’s ever increasing grasp on our society. Perhaps the mostly troubling is the question of privacy and government intrusion. Should the government be able to search our phones? The common rationale among courts is that we don’t have a reasonable expectation of privacy to information we knowingly expose to the public. I think most of us value our privacy and wouldn’t want the government reading our text messages. But we send texts to each other via a cell carrier, who employs thousands of people, and those text messages travel though a conduit of wires, cords, air space, and computers before arriving at its destination. Does that mean the government can read the text since we sent it through Cell Corp, LLC? I think the ultimate answer to that will be no. And that answer is starting to emerge with the recent case from the 6th Circuit Court of Appeals.First, you maybe be wondering, “What is the 6th Circuit Court of Appeals?” It’s the Federal Court that hears appeals from the district Federal courts in Michigan, Kentucky, Tennessee, and Ohio. This case, G.C. v. Owesboro Public Schools, came from the Western District of Kentucky and the 6th Circuit now reversed the lower court’s prior ruling.
This important Constitutional case started out innocently enough. G.C. was simply texting on his phone during class. Of course, this was prohibited, as it violated school rules to use cell phones during class. At that point, the teacher turned it over to an administrator who searched through G.C.’s text messages.
Of course there is always more to the story. G.C. had past behavioral issues with the school; there had been admissions of drug use. And the juvenile had also expressed the desire to hurt himself. Or at least those were the reason school administrators gave justifying their intrusion.
In an age where the 4th Amendment is constantly eroded by all phases of government, the 6th Circuit decided to hold true here. The distinction the Court seems to have made is not the purpose of the search, but the actual reason and rationale. Searching a phone for suicidal tendencies may be proper, but simply being caught texting in class is not an indication of self-destructive behavior. Thus, the Court said:
- A search is justified at its inception if there is reasonable suspicion that a search will uncover evidence of further wrongdoing or of injury to the student or another.
- Not all infractions involving cellphones will present such indications. Moreover, even assuming that a search of the phone were justified, the scope of the search must be tailored to the nature of the infraction and must be related to the objectives of the search.
- Under our two-part test, using a cellphone on school grounds does not automatically trigger an essentially unlimited right enabling a school official to search any content stored on the phone that is not related either substantively or temporally to the infraction.
The jurisprudence related to school issues has always been a little different. What you can say on the street corner is not always allowed in a school setting. However, the 6th Circuit did a good job balancing the interests of privacy in a school with the Constitution. And I think courts will continue to do this. If we simply allowed the government to search all technologically related materials based on our histories, I imagine many of us would not be happy with what’s revealed.
The opportunity for impropriety is apparent. “We want to catch drug dealers, so we’re going to go through everyone’s phone.” Or how about, “We want to protect the public, we’d like to search everyone’s email and contacts for terrorist ties.” I’ve seen similar ideas tossed around under the guise of “if you have nothing to hide why not?” To that I’d say, “Sure, right after you Senator Larry Craig.”