For several years, states have grappled with the problem of cyberbullying and its sometimes devastating effects. Because cyberbullying often occurs between students, most states have understandably looked to schools to help address the problem. To that end, schools in forty-six states have the authority to intervene when students engage in cyberbullying. This solution seems all to the good unless a close examination of the cyberbullying laws and their implications is made. This Article explores some of the problematic implications of the cyberbullying laws. More specifically, it focuses on how the cyberbullying laws allow schools unprecedented surveillance authority over students. This authority stands in notably stark contrast to the constraints on government authority in other contexts, including police authority to search cell phones. In June 2014, the Supreme Court recognized in Riley v. California that police searches of cell phones require a warrant because of the particular intrusions into privacy attendant to those searches. While some surveillance authority over students may be warranted, the majority of the cyberbullying laws implicitly give schools unlimited, or nearly unlimited, and unfettered surveillance authority over students’ online and electronic activity whenever, wherever, and however it occurs: at home, in bedrooms, at the mall, on personal cell phones, on tablets, or on laptops.
This Article argues that the cyberbullying laws, though well meaning, vastly expand school authority through the broad, if implicit, allowance of surveillance authority over students and implicate privacy harms that are made more acute because the authority lies with schools over students. Although no doctrine yet exists on the limits of school surveillance authority, limits on school authority in other contexts do exist. First and Fourth Amendment doctrine in student-speech and search cases, as well as doctrine on government surveillance more generally, offers some guidance on where the boundaries of school authority lie. The surveillance authority in most cyberbullying laws goes beyond these bounds, indicating that cyberbullying laws expand school authority. To protect students from excessive school surveillance authority and attendant privacy harms, realistic limits need to be imposed on school surveillance authority under the cyberbullying laws both by way of a framework for determining the boundaries of school authority and a cause of action for students. This Article calls for both and draws on the nexus doctrine in First Amendment student-speech cases to develop such a framework.
Suski, Emily, Beyond the Schoolhouse Gates: The Unprecedented Expansion of School Surveillance Authority Under Cyberbullying Laws (2014). Case Western Reserve Law Review, Vol. 65, No. 1, 2014. Available at SSRN: http://ssrn.com/abstract=2573390