Intellectual Property Law

Student Sues School for Damages in Sexting Case

By Kim Zetter

A former Pennsylvania high school student has sued school and county officials for damages in a controversial sexting case.

The student alleges a violation of her constitutional rights, in a civil suit filed last week that could serve as a cautionary tale to other officials considering punishing students over risque self-portraits.

In the complaint filed in a U.S. District Court in Pennsylvania, the former student — identified only as “N.N.” — accuses former District Attorney George P. Skumanick, Jr., principal Gregory Ellsworth, the Tunkhannock School District and Wyoming County of violating her constitutional rights (.pdf). The lawsuit seeks unspecified damages.

The complaint alleges that officials had no probable cause to seize and search her phone, and violated her privacy and her right to free expression by punishing her for storing nude and semi-nude photos of herself on her phone.

The plaintiff, now 19 years old, was a student at Tunkhannock Area High School in January 2009 when school officials, who discovered that male students had been trading photos of female students showing them in various states of undress, confiscated and searched the phones of her and several other students. Officials then turned the phones over to the district attorney’s office, which began a criminal investigation.

Then-District Attorney Skumanick, who lost his bid for a sixth term last year, threatened about 16 students — three boys and 13 girls — who either appeared in the images or were found in possession of them with child porn charges unless they agreed to six months of probation, submitted to drug testing and attended a five-week, 10-hour education program to discuss why what they did was wrong. He gave the parents of the students 48 hours to agree to the terms. The plaintiff is now suing the school and county for illegal search and for forcing her to take the educational program.

In a separate but related case, the American Civil Liberties Union sued last year on behalf of three other Tunkhannock students who appeared in risque photos but refused to participate in the forced education program. The ACLU sought to bar prosecutors from charging the teens with a crime and won a permanent injunction last month.

According to N.N.’s civil complaint, a teacher seized the phone after the plaintiff received a call during class. The school’s rules require student cellphones to be turned off and stored in lockers during school hours. Students who violate the rules risk detention and having their phone temporarily confiscated.

A while after the plaintiff’s phone was seized, she was summoned to see the principal, Gregory Ellsworth, who told her that he had gone through her phone and found explicit images stored in the memory. He told her that he had given the phone to law enforcement officials, and then suspended the plaintiff for three days.

In several of the photos, the plaintiff’s breasts are exposed, and one photo shows her pubic area, according to the court document.

The plaintiff says that except for one image, she took all of the photos herself and never shared the images with any other students. They were meant to be viewed only by her and her long-term boyfriend.

Even though no charges were brought against her, the images are still part of the government record, and the plaintiff is seeking to have them destroyed. She’s also seeking to be reimbursed for the $100 cost of the educational course and for about $71 in lost wages.

Photo: AP

See also:

• ACLU Sues Prosecutor Over ‘Sexting’ Child Porn Charges

Full post as published by Threat Level on May 24, 2010 (boomark / email).