It is public education’s version of warrantless wiretaps. Some Colorado school districts have begun seizing student cell phones and copying instant messages from them to place in student files.
The school divisions say they’re trying to ferret out potential criminal behavior. The ACLU says they can find the felons by looking in the mirror.Colorado ACLU legal director Mark Silverstein will be sitting down soon with lawyers from Caplan and Earnest, a private firm representing the Boulder Valley School District. The attorneys will talk about a Colorado law that says:
“Any person not a sender or intended receiver of a telephone or telegraph communication commits wiretapping if he … knowingly overhears, reads, takes, copies, or records a telephone, telegraph, or electronic communication without the consent of either a sender or a receiver thereof or attempts to do so…”
That’s what the ACLU says school administrators at Boulder Valley’s Monarch High did when they confiscated student cell phones and copied instant messages.
In a statement that the school system said would be its last public comment on the matter, Boulder Valley administrators denied any wrongdoing.
“Prior to confiscating the students’ cellular phones and transcribing text messages found on them,” the statement reads, “Monarch administrators contacted the BVSD Legal Counsel’s office and were told it was indeed legal for them to take the actions that they were considering.”
Replied Silverstein: “I strongly suspect the school’s in-house counsel didn’t look at the Colorado statutes.”
The battle here is not about protecting criminals, it’s about protecting a process. That process recognizes the need for independent oversight in the invasion of privacy.
Police can get warrants to obtain the information contained in people’s personal communications. But first, they must prove to a court that they have good cause to think those communications link to criminal activity.
Getting the right to seize electronic communications is harder than getting your run-of-the-mill search warrant, Silverstein added.
“For an ordinary search, you can do it for any crime,” he said. “For electronic communications, it is only allowed for certain types of crimes, and at the minimum that crime must be a felony.”
Monarch High officials were looking for “messages about marijuana or alcohol,” Silverstein said.
Underage possession of alcohol and possession of small amounts of pot are not felonies.
Even if they were, said Silverstein, to get a warrant to wiretap, the cops must show they’ve tried “less intrusive methods” to get the information.
That doesn’t seem to have happened in Boulder Valley. It does not appear to have happened in Jefferson County and Douglas County where administrators reportedly took student cell phones and transcribed information.
A Monarch student and his parents came to the ACLU to complain about the school’s actions. Since the ACLU sent Boulder Valley a letter this week calling the phone seizures and transcriptions a felony, Silverstein said the ACLU has heard from other students and parents.
For now, all of them “want to stay in the background,” Silverstein said.
That may not be possible if the meeting with school district lawyers doesn’t lead to a change in policy.
Silverstein remains optimistic.
“I think if the Boulder Valley School District were to say, `We’re going to hold off on this in the future,’ that’s going to have an affect on other school districts,” he said.
It should. In America, there is a right way to get information and a wrong way. The wrong way can make you a lawbreaker as surely as the criminal you pursue.
Silverstein insists that’s what happens when school administrators seize and transcribe information from student cell phones without permission or police warrants. He can show you the state code section that makes this a crime.
“Someone,” he said, “is going to have to show me why the statute doesn’t apply.”
