Things are really heating up in the Robbins et. al versus Lower Merion School District lawsuit, with the ACLU today issuing an Amicus brief (available in PDF) this morning, supporting the plaintiff’s request that the U.S. District Court for the Eastern District of Pennsylvania issue an immediate restraining order enjoining the school district from any further spying. Late this afternoon , an attorney for the plaintiff confirmed that an agreement was reportedly finalized to stop the monitoring while preserving evidence for the lawsuit.
Last week in Pennsylvania, student Blake Robbins and his family filed a lawsuit against Lower Merion School District, because the district allegedly used the webcams on school-issued laptops to photograph students in their homes, without the students’ knowledge or consent. Since then, a number of students have come forward saying that the green lights on their webcams were mysteriously turned on at different times while the school district itself has issued a statement claiming that they only turned on student Webcams 42 times and only to track those which were reported lost or stolen. Meanwhile the FBI is investigating the school district.
The case has set the Web buzzing about the limits of privacy in the digital age and the rights of schools who give notebook to their students to monitor what students do on them. Earlier today, we spoke with ACLU of Pennsylvania Legal Director Vic Walczak for an update on the case and with Electronic Frontier Foundation Chief Council Kevin Bankston to find out what legal protections, if any, the school may have violated and what recourse is available to the rest of us.
“What gets me in this situation is that I can’t imagine there’s a parent anywhere who would support the school district’s actions here,” Walczak told us. “Under the fourth amendment, a police officer could not nudge your front door open and step into the foyer without an invitation or a warrant. That would be a fourth amendment violation. And what the school allegedly has done here is the equivalent of the principal breaking into the house, hiding in the child’s closet, and then watching him or her from there.”
Bankston agreed, saying that the EFF believes that Lower Merion School District flagrantly violated students’ fourth amendment rights. “I think that the school had as little right to do this as it would to secretly install listening devices in the textbooks that it issues to students,” he said.
Walczak said that he was on a call with the court this afternoon with the judge and both parties in the case and that he was told that a legally binding agreement that prohibits the school from engaging in electronic surveillance was probably going to be final this evening. He said that, though the facts of the case — whether the district was simply doing theft recovery or bald-faced spying — remain in dispute the district has agreed to halt its webcam-based monitoring. “For now the good news is that whatever it is that the district is doing, they’ve agreed to stop and, if they violate that, they’re subject to the court’s contempt power,” he said.-
Consent to Spy?
Even if the school district had gotten students or parents to agree to the monitoring as a condition of receiving the notebooks, the spying would have still be unconstitutional, according to Bankston. He told us that private schools or employers can ask you to sign away your right to privacy, but not a government entity like a public school. “To condition one’s receipt of government benefits on your surrendering a constitutional right is itself unconstitutional,” he said.
Other Kinds of Computer Monitoring Also Illegal
According to Bankston, other forms of monitoring — including keylogging, Web monitoring, or taking screen caps — would have been just as unconstitutional as taking photos of the students with their Webcams. “If they are secretly monitoring what you are doing while at home, that implicates the fourth amendment, whether that’s logging your keystrokes or taking pictures of you,” he said.
Legal Recourse Against Webcam Spying
Though both the EFF and the ACLU clearly feel that Robbins et al (the plaintiff’s official name) had their rights violated, this is a first-of-its-kind case and what legal remedies the court orders remains to be seen. In particular, Bankston emphasized that federal wiretapping laws do not explicitly prohibit video surveillance unless audio is captured also.
“There is no federal statute that criminalizes or creates civil liability for such secret videotaping unless it involves sound, because then it is an intercept of a verbal communication. So no one can plant a bug in your house without violating wiretapping law, but they can still plant a camera without violating federal wiretapping laws,” he said. “That’s something that congress should address particularly now that everyone potentially has a surreptitious video device staring them in the face when they’re at their laptop.”
Wiretapping Claim Not Valid
Bankston also pointed out that one of the claims brought by the plaintiffs — that the school district violated wiretapping laws — is weak, because technically wiretapping involves intercepting communications that have already begun, not creating a connection to take video. However, that’s not the only claim filed as the lawsuit and the court has many options at its disposal, including awarding damages.
“We filed the amicus brief to share our expertise in this area of constitutional law and to support the plaintiffs’ efforts to make sure this surveillance stops immediately,” Walczak said in a statement issued on the organization’s Web site. Bankston concurred saying that EFF hopes that the lawsuit will serve as a warning to other institutions that are thinking of spying on the people they give laptop computers
How to Protect Yourself
If you’re a student who has been issued a laptop by school or an employee who’s gotten one from work, Bankston says you should be vigilant about protecting your privacy. “Laptop users are carrying a bugging device and a secret video taping device with them wherever they go,” he said.
He advised users who think they might be potential targets of webcam spying to install security software and to cover their cams with post-it notes. However, he said that audio spying via a notebook’s built-in microphone might be difficult to defeat, because there’s no hardware switch that disables the mic.
Walczak said the key is for parents to ensure that, if their child’s school issues laptops, there are rules in place to protect students’ privacy. “I think parents should demand that their school districts have very clear rules saying that, to the extent such surveillance apparatus is available to them, that it’s not gonna be used.”