Legal Commentary

A Few Thoughts on Robbins v. Lower Merion School District

By Orin Kerr

Eugene links to the complaint in the school-provided-laptop-with-cameras case, and I wanted to offer a few thoughts on it from a legal standpoint. I?ll assume the school?s statement as to what happened is accurate, and the computer?s camera was turned on and a still photo was taken only when the school believed the laptop had been stolen or was missing. (To be clear, I?m not sure that statements is true, but I need to assume something to get a sense of how the law applies: That seems a reasonable starting point.)

My tentative bottom line: The schools violated the Fourth Amendment rights of students when they actually turned the cameras on when the computers were at home. On the other hand, the schools did not violate the federal statutory surveillance laws.

1. The federal Wiretap Act cause of action doesn?t work. The computers allegedly took still images of the student, but the Wiretap Act doesn?t apply to video images. The Wiretap Act applies to bugging audio equipment (?oral communications?), intercepting phone calls (?wire communications?) and intercepting computer communications (?electronic communications.?). But the alleged interception here is of a video image without sound, and the Wiretap Act doesn?t apply. See, e.g., United States v. Koyomejian, 970 F.2d 536, 539 (9th Cir.1992); United States v. Torres, 751 F.2d 875, 880 (7th Cir.1984).

2. As far as I can tell, the Pennsylvania wiretap statute is identical (as relevant here) to the federal Wiretap Act. If I?m right about that, the Pennsylvania wiretap act cause of action doesn?t work either.

3. The Stored Communications Act cause of action is frivolous. Individual laptops are not electronic communication service providers under ECPA.

4. The Computer Fraud and Abuse Act claim doesn?t work, either, even if you can get past the unauthorized access issues, because the civil cause of action under 18 U.S.C. 1030(g) requires you to show loss aggregating at least $5,000. Loss is a defined term under 1030(e)(11) which refers to reasonable economic costs suffered by the intrusion. Also, you can?t aggregate losses for other related intrusions of other students, if there were any, because this isn?t a case brought by the United States Government. See 1030(c)(4)(A)(i)(I). I don?t see how the plaintiff here suffered $5,000 in economic loss. The complaint makes no mention of any such losses.

5. The Fourth Amendment issues here are interesting. I can?t speak to the Pennsylvania common law cause of action, but at least among the other causes of action, this strikes me as the most serious. Let me break down the issues in two steps:

a) This case is brought as a class action, but the Fourth Amendment issues here don?t work as a class action. Any ?search? here didn?t occur until the camera was turned on, which according to the school occurred when the laptop was thought to be lost or stolen. That means no search occurred under the Fourth Amendment for students who had laptops that were not turned on. See United States v. Karo, 468 U.S. 705 (1984) (?The mere transfer to Karo of a can containing an unmonitored beeper infringed no privacy interest. It conveyed no information that Karo wished to keep private, for it conveyed no information at all. To be sure, it created a potential for an invasion of privacy, but we have never held that potential, as opposed to actual, invasions of privacy constitute searches for purposes of the Fourth Amendment. . . . It is the exploitation of technological advances that implicates the Fourth Amendment, not their mere existence.?).

b) Taking the photograph inside the home seems pretty clearly to be a search under Karo. The school might try to justify this under the special needs exception: The school issued the laptop and could search it to investigate misconduct under New Jersey v. TLO. The problem with this argument is that the school didn?t search the laptops: They searched the home where the laptop happen to be present.

Is there some other reasonableness framework that can apply in that situation to justify the search of taking the photograph? None come to mind: I would think the government would have to use the probable cause of the computer being taken to get a warrant to justify turning on the camera. So unless I?m just missing something, this was a Fourth Amendment violation for taking the still image of the home without obtaining a warrant.

6. As I said, I?m not sure about the Pennsylvania common law tort claim. I?ll leave that one to the tort lawyers.

Full post as published by The Volokh Conspiracy on February 18, 2010 (boomark / email).