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Following up from my last blog post, and after talking to a number of individuals working in various school districts, this is what we know:

1) FERPA allows schools who learn the identity of a cyberbully upon investigation of an incident that affects the climate or environment or values of the school to protect that identity and refuse to share it with a cyberbully victim (or their family).

2) Some states require schools to report behaviors in violation of state law just as they are required to report other criminal acts (e.g., drug use, weapons possession, sexual assault).  For example, here in Florida the scenario depicted in my last post could be classified as a violation of the following criminal law: “Any person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks a minor under 16 years of age commits the offense of aggravated stalking, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.”  As such, the school would be obligated to report that to the police.

3) A cyberbullying victim (or their family) may therefore be able to learn the identity of a cyberbully by contacting law enforcement, who would not be bound by FERPA.

I hope this helps us a little.  If you have further insight into this issue, please let us know.

We’ve covered this issue a couple of times before on this blog, but given the interest I thought I would respond to some of the comments that have been posted and provide some insight gained from discussions I have had with folks over the past few months.  Some people have suggested that students have effectively no right to privacy in schools.  On its face, this is patently false – students do in fact have *some* privacy rights in schools.  That said, the rules are different in schools than in other public places.

All Americans are protected against “unreasonable” searches and seizures (4th Amendment), and what can be classified as “reasonable” varies depending on the context.  In schools, educators can generally search student property if (and only if) they have a good reason to believe that evidence exists therein which will reveal a violation of school policy.  If that evidence is found, the offending student may be subject to an administrative sanction by the school (e.g., detention, suspension, etc).  For example, if a credible student tells a principal that another student at school has a phone in the classroom that includes the answers to the algebra exam, then a search may be allowable given these circumstances.

This ability to search can be contrasted with that of law enforcement, who are required to abide by a higher standard.  School (or other) police officers must have probable cause that evidence of a crime exists in order to conduct a search of property.  To be clear, mere suspicion is not enough for law enforcement officers.  They must be able to articulate to a judge that probable cause existed (either before the search is conducted or after at trial).  For example, if a credible student informs a school resource officer (a sworn police officer) that another student has a gun in his or her backpack, clearly the officer would be able to search the backpack.

If we apply these principles to the issue of cell phones in the classroom, we know that educators or law enforcement officers can in fact search a cell phone under some circumstances.  Either way, there has to be some articulable level of knowledge that the cell phone contains evidence of a violation of school policy or criminal law (depending on who is performing the search).  In the opinion of many, simple possession of the phone in the classroom, while in itself a violation of school policy, does not provide license to search that phone by anyone.

Always remember that neither Sameer nor I are attorneys, and so this should not be interpreted as legal advice.  Furthermore, these are very complicated issues that cannot be adequately covered in a short blog posting.  There are many exceptions to the basic principles outlined above.  As always, consult an attorney who specializes in school and/or privacy law.  Even they, however, often disagree as to how these laws and court rulings can or should be interpreted.   Case law and precedent are currently being formed as schools and courts wrestle with these issues.  If you are aware of any incidents that have gone to court related to this topic, please pass them along so that we can analyze and distill what can be learned from them.

In April, Justin briefly blogged about this article from the Washington post entitled My Students. My Cellphone. My Ordeal. I’d like to follow up by saying that more educators are contacting us with questions on what to do in cases where students have cell phones with sexually-explicit pictures of other youth on them.  While the administrator in the aforementioned article probably could have done a few things differently to prevent the nightmare he experienced, I still want to encourage school personnel to hand it over to law enforcement immediately after they confiscate the incriminating cell phone and before they unwisely decide to search its contents.  While school administrators need a lesser standard of proof than law enforcement to perform searches at school, I believe that they should err on the side of caution and let sworn representatives of the law identify and work with sexually-explicit pictures or videos of youth.  Thankfully, the administrator was not convicted on any count, and the entire case was thrown out on the basis of a misapplication of the charges brought by the prosecutor.  The entire situation, however, was premised on a lack of information, understanding, and rationality on the part of the prosecuting team – which makes me concerned about future cases across our country.  If we are going to possibly implement more regulation and respond with greater formal sanctions in new technology cases, we must make sure that those in the criminal justice system with the power to drastically alter the lives of others need to intelligently interpret the Constitution, case law, and *all* the facts of a situation without allowing zeal, emotion, and sensationalism color their actions.

Thankfully, Facebook is soon going to restructure the way it displays privacy settings to users.  Currently, those settings are scattered across multiple pages, and it is a chore for individuals to customize them to their liking.   When we talk to elementary, middle, and high-schoolers, we ask about those settings – and have found that very few youth take extensive time to lock down their Facebook page on a granular level.  Rather, most simply go with the default privacy settings – which are much more open than I would personally prefer.  Hopefully by consolidating these settings into one page, it’ll be much easier for users to run through each privacy option and make appropriate selections based on what content they want to reveal (and how it is done).   Even more important is that they carve out the necessary time to do it – something we highly encourage.  Take the fifteen or so minutes to fully understand what each setting means, and then customize them to your comfort level.  Overall, I am quite pleased about this.

Another issue, though, has to do with Facebook’s soon-to-be-released Transition Tool, which will subtly suggest to (encourage?) users to make some of their content available (or shared to) “Everyone” with the reasoning that friends will find you more easily (which is true).  However, it’s likely this content will also be indexed by Google and other search engines – which is beneficial to Facebook as they try to compete with Twitter as the premier source of real-time information and status updates being posted and distributed by the masses.  However, it’s more palatable for my Twitter page to be found by search engines and individuals that I don’t know at all; it’s less acceptable for content on my Facebook page to be similarly found.  To each his own, but just make sure you completely know what you’re doing.  After all, it is *your* information out there – and it’s going to be out there for a really, really long time.  I’ll share more of my thoughts after I get to play around with the new tool.

This story out of New Berlin, WI, reports about very extreme case of cyberbullying.  It is reported that an 18-year-old male student posed as a female student on Facebook and tricked other male students into sending him nude pictures or videos of themselves.  There were at least 31 male students who apparently did so, and the offender in this case also reportedly coerced several of them to engage in sexual acts with him by threatening that he would post the pictures online and/or send them to others in the school.

We have certainly heard more and more stories lately of teens taking naked pictures of themselves or others and distributing them electronically.  Like anything, it is important to educate students about the risks inherent in engaging in these kinds of activities.  For example, teens all around the country are being charged with possession or distribution of child pornography for these behaviors–not to mention the social implications associated with this.  By the way, here is a short, but humorous video that can be used to educate youth about this phenomenon.