Feb 212010
 February 21, 2010  Posted by  Court, Surveillance, U.S., Youth & Schools

A lawsuit alleging that the Lower Merion School District in Pennsylvania remotely activated security software on laptops issued to students and spied on students in their homes is shaping up to be a significant case for those interested in surveillance issues, the Fourth Amendment, and/or student privacy. In the most recent developments, the FBI and Montgomery County prosecutors are looking into the case and the plaintiffs filed a motion for an emergency temporary restraining order against the school district.

The lawsuit, filed February 11, alleges

invasion of Plaintiff’s privacy, theft of Plaintiff’s private information and unlawful interception and access to acquired and exported data and other electronic communications in violation of the Electronic Communications Privacy Act, the Computer Fraud Abuse Act, the Stored Communications Act, 1983 of the Civil Rights Act, the Fourth Amendment of the United States Constitution, the Pennsylvania Wiretapping and Electronic Surveillance Act and Pennsylvania common law.

The case, which stems from a November 2009 incident involving high school sophomore Blake Robbins, started a buzz on the Internet after Cary Doctorow of BoingBoing and then Courthouse News covered the case. By the end of the next day, on February 18, the school district issued a statement acknowledging that the Apple laptops had a security feature that enabled remote activation of the web cam, but they insisted that it was only used to trace missing or stolen laptops. They also indicated that the feature had now been disabled. In a statement by the Superintendent, they explained how the software worked:

Upon a report of a suspected lost, stolen or missing laptop, the feature was activated by the District’s security and technology departments. The tracking-security feature was limited to taking a still image of the operator and the operator’s screen. This feature has only been used for the limited purpose of locating a lost, stolen or missing laptop. The District has not used the tracking feature or web cam for any other purpose or in any other manner whatsoever.

Lower Merion School District spokesman Doug Young subsequently stated that the feature had been used 42 times, but only to locate missing laptops, 28 of which were recovered. Young also indicated that “only two technology department employees were authorized to activate the cameras and only to locate missing laptops.”

According to the lead plaintiff, however, his laptop was never lost or missing and he never reported it as such. According to an interview Blake Robbins gave to NBC, Assistant Principal Lindy Matsko allegedly confronted him in Nov. 2009 for engaging in “improper behavior” at his home and showed him photos of him taken remotely with the web cam:

Robbins claims that the “pills” the school observed were Mike & Ike candy. The allegations confuse things even more because even if the district suspected a student was doing drugs at home, unless there’s a law I am not aware of, they do not have the legal authority to engage in warrantless surveillance off school grounds. And of course, they claim that they have only used the feature in cases of missing laptops.

The FBI is now involved in the case and is looking at whether any federal wiretap laws were broken. Federal subpoenas have reportedly been issued. Montgomery County prosecutors are also looking into the case to see if any criminal investigation is warranted.

On Friday, the plaintiffs filed for an emergency temporary restraining order and permanent injunction against the district. In its motion, the plaintiffs allege that:

notwithstanding Defendants’ public pronouncement in response to Plaintiffs’ institution of their class action that the embedded camera was only activated to and employed to investigate lost or stolen laptops, a number of the affected class members were interviewed by various news media outlets yesterday, which interviews reveal that the embedded web camera was turned on indiscriminately by Defendants as evidenced by the illumination of a small green light adjacent to the camera that indicated its activation, as has been reported by a number of members of the class.

The plaintiffs seek the injunction because without a court order, they say, there is nothing to prevent the school district from reactivating the security feature. On Thursday, they served the district’s lawyers with a litigation hold letter to preserve all electronic evidence.

In the meantime, Eugene Volokh and Orin Kerr have offered some thoughts on the merits of the plaintiffs’ claims, which, after one gets over the initial outbursts of understandable indignation, may not be as compelling as the complaint might suggest. The comments on the blog entries are also well worth reading, as there seems to be disagreement as to whether the Electronic Communications Privacy Act applies.

The following clip is from another school district, this one in the Bronx:

In this case, the students knew they could be monitored.

If you or your child has a school-provided laptop with a web cam for home use, better safe than sorry: put a post-it or the always-useful duct tape over it.

[Story corrected to reflect that students at IS 339 knew they were being monitored].

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