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There has been a lot of interest in our sexting guide for educators and parents and so I thought it would be a good time to highlight a couple of other findings from that research. Data for this study were collected in the spring of 2010 among a random sample of middle and high school students in a large school district in the southern United States. About 4400 students completed the electronic survey from computer labs within their schools. The sample was evenly split between boys and girls (50.7% male and 49.3% female) and the sample ranged in age from 10 to 18.

With regard to gender and sexting, we found that males were more likely to have received a naked or semi-naked image of someone from their school via cell phone. Specifically, about 16% of males received a naked or semi-naked image compared to about 10% of females (this was statistically significant p<.001). Males were also slightly more likely to have sent a naked or semi-naked image via cell phone (8.2% of males versus 7.2% of females). This too was a statistically significant difference (p=.021).

We all have heard tragic examples of sexting incidents leading to long-term or even permanent consequences for both boys and girls across the United States, and these experiences continue to remind us to work to educate teens about the safe and responsible use of technology. Teens need to understand that if they take a picture of themselves and send it to others or post it online, they lose complete control over how that image is used. They shouldn’t be surprised if it ends up on the front page of the newspaper, or on the desk of their principal, or in front of their parents. While many teens view sexting as a safer way to be intimate with a romantic partner, too often the images are seen by a much wider audience than intended.

As adults who work to educate teens, it is imperative not to panic about this but to understand the motivations of the youth involved and take steps to prevent it from happening in the first place. Our research demonstrates that teens are listening when caring adults talk with them about using technology with wisdom and discretion. The fact that you are reading this blog is evidence that you are a caring adult – now translate that compassion into action. Talk to the adolescents in your life about this issue and make sure that they are aware of the potential costs and consequences.

Thanks to all for their comments on my recent blog about how teens should respond when they receive a “sext.” Here are some of my follow-up thoughts, based on comments and emails received, as well as an email exchange among members of the Youth Risk Online Google Group which includes some of the brightest “teens and tech minds” in the world. (You can read fellow member Larry Magid’s comments here.)

Being a criminologist who regularly works with police officers and who is currently working with the FBI to train officers about issues relating to cyberbullying, I certainly can appreciate the interest expressed by the law enforcement folks who responded saying that the evidence needs to be kept. The problem is that if they follow this advice, they risk prosecution for possession of child porn if a district attorney is trying to make a name for him/herself. Plus if a friend gets a hold of their phone, finds the image, and distributes it to others, there will be huge problems.

I also appreciate the concerns of those who maintain that an adult must be consulted. This is sage advice for many adolescent problems (including those that originate or escalate online), but frankly it just won’t work in a sexting incident. As I pointed out in my post, it is my contention that the vast majority of the time teens receive sexting images from those they consider close friends. As such, there is absolutely NO WAY they will tell an adult about this because they do not want to get that friend into so much trouble. If my best friend sends me a topless picture of his girlfriend, am I going to rat him out? Of course not. Adults, it seems, are forced to respond to sexting incidents in extreme ways – ways that have long-term, irreversible consequences. Until we can develop reasonable responses that do not potentially foreclose on the futures of all involved, we are wise to advise that students do not contact adults, unless the incident is appearing to get out of control. And I think teens know when it is out of control.

Moreover, whenever educators ask me what to do about sexting incidents they are made aware of, I generally advise them to contact a law enforcement partner. Unfortunately, this too is bad advice, but the only advice that is safe. Teachers who confide in other teachers risk prosecution for distribution of child porn. Educators simply aren’t trained to deal with these problems and if they try to do the right thing, it will likely come back to haunt them. The problem here is that cops and district attorneys do not have a good history when it comes to dealing with sexting. But they are not the only ones to blame for this. They are applying and enforcing outdated laws that weren’t written to deal with this problem. Police and prosecutors are generally black/white types of people, and there is a whole lot of gray when it comes to dealing with sexting. Until we sort these issues out, it is risky to involve them in responding to the problem. But it is also risky (perhaps even more so) for adults who are confronted with a sexting incident to not contact the police. That’s because they too are potentially subject to long-term, irreversible consequences if they mishandle the incident (that’s especially true for educators).

So, while I appreciate everyone’s feedback, nobody has said anything that leads me to change my advice. Keeping the best interest of teens in the forefront, we must insist that students who receive sext images immediately delete them and hope that the incident ends there. If it doesn’t, then we have to re-evaluate.

If you are a teen and receive a sexually-explicit image of a classmate via your cell phone (or email, or instant message, or via a Nintendo Dsi, or any other type of electronic communication), what should you do? This can be a challenging situation, to say the least. We know that anywhere from 10-30% (or more) of teens have received such images, and many probably don’t know what to do. You have no doubt seen the examples in the media of teens being cyberbullied, arrested, or even committing suicide as a result of bad decisions involving the circulation of nude personal pictures. My thoughts here are intended to provide you (youth) with a specific and simple strategy to help avoid any of these consequences.

If you do receive such an image, odds are that it was sent by a good friend (or a boyfriend or girlfriend). As a result, you probably don’t want to get this person into too much trouble, but you figure that sending or receiving nude or semi-nude pictures of another teen is probably not going to lead to great things in life (because if you think about it, it is highly inappropriate, morally wrong, and potentially illegal). So what do you do? Well, most adults might advise you to “tell an adult you trust.” This is generally good advice, however in the case of a naked photo of an under-aged youth, this can be devastating for all involved. For example, if you show the image to a teacher, he or she is likely required to report it to the police. Teachers who don’t can lose their teaching license and/or be fired. If they don’t know what to do and seek guidance from a fellow teacher, they could get into even more trouble. For example, if you hand your cell phone with the nude image over to the teacher, and he or she shows another teacher, both teachers (and you) could be charged with “possession” of child pornography since they had possession of your phone. That’s because the police often treat these images as child pornography – irrespective of the intent of the sender or the relationship of those involved. This means that if you take the picture, you can be charged with “creation of child pornography.” If you send or forward the picture, you can be charged with “distribution of child pornography.” If you keep it on your phone, you can be charged with “possession of child pornography.” In some cases you could even end up on state sex offender registries.

My advice to teens who receive a nude or semi-nude image of a classmate is simple: immediately delete it. Don’t tell anyone about it. If there is an investigation and someone asks if you received the image, you should tell them yes, but that you immediately deleted it. If necessary, they can get your cell phone records from your service provider which will show that you deleted it within seconds of receiving it. This is the best situation for you. Of course, some adults aren’t going to like this advice because they want to be in the “know” to attempt to deal with the problem, but I think it is the only safe advice I can offer youth at this point.

The primary goal in sexting incidents is to limit the victimization of the person portrayed in the image. If the individual(s) who initially received the image immediately delete it, there would be no distribution and victimization would be minimized. Be sure to tell your friends that it is in their best interest not to hold onto or send these kinds of images. It just isn’t worth the potential long-term and irreversible consequences to your (and their) reputation.

If you find out that your friends are continuing to distribute naked pictures of themselves or others, you would be wise to let them know how such behavior can seriously mess up their future. Strongly encourage them to stop and to delete the images. If you are concerned about the well-being of the person depicted in the images, you may want to anonymously report the behavior to your school (if there is a way to do this).

We have said it many times on this blog, but it bears repeating here that neither Sameer nor I are attorneys, so you should not interpret this blog as formal legal counsel. We are simply looking out for the best interests of teens and those who interact with them. Stay tuned for a follow-up post in the near future on what teachers should do if a student tells them (or shows them) a sexting image involving a student.

Do students have an expectation of privacy on their cell phones while at school? The short answer to this is a qualified yes. Whether educators have the authority to search the contents of student cell phones depends on a lot of factors. The key issue in this analysis (that we have raised before on this blog) is the standard of reasonableness. According to New Jersey v. T.L.O (1985) students are protected by the Fourth Amendment to the U.S. Constitution which protects citizens against unreasonable searches and seizures. In T.L.O., the Supreme Court goes on to say that the standard that law enforcement officers must reach to conduct a search (probable cause that a crime has been committed), is not required of educators. In general, the standard applied to school officials is whether the search is “justified at its inception and reasonable in scope.” Of course there is a bit of subjectivity to this standard and what appears to be reasonable for one person may not be for another. In T.L.O., the Court ruled that for a search of student property to be justified, there must exist: “reasonable grounds for believing that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.” This seems to be the standard by which schools should determine whether a search of a student cell phone is allowable.

There are a couple of cases which have been decided that shed some light on how this particular standard would apply to the search of student cell phones. The case most often cited is Klump v. Nazareth Area School District (2006). In this case, a teacher confiscated a student’s cell phone because it was visible during class – which was in violation of school policy (it accidentally fell out of the student’s pocket). The teacher and assistant principal then searched through the cell phone’s number directory and attempted to call nine other Nazareth students to determine if they too were in violation of the policy. They also accessed text and voice mail messages and communicated with the student’s brother without indicating to him that they were school staff.

The Court agreed that the school was justified in seizing the phone, but should not have used the phone to “catch other students’ violations.” In summary, the U.S. District Court in Klump concluded: “Although the meaning of ‘unreasonable searches and seizures’ is different in the school context than elsewhere, it is nonetheless evident that there must be some basis for initiating a search. A reasonable person could not believe otherwise.”

In November 2010, a Mississippi federal court identified no Fourth Amendment violation when a teacher seized, and administrators reviewed, photos and text messages in a cell phone confiscated from a boy who used it in violation of a schoolwide ban (J.W. v. Desoto County School District, 2010). Of course, the seizure was allowed because the school had a policy prohibiting the possession or use of cell phones at school. The issue in this case was the legitimacy of the search of the phone’s contents, which included incriminating pictures of the student wearing what appeared to be gang clothing.

The court ruled that the school was justified in searching the cell phone: “Upon witnessing a student improperly using a cell phone at school, it strikes this court as being reasonable for a school official to seek to determine to what end the student was improperly using that phone. For example, it may well be the case that the student was engaged in some form of cheating, such as by viewing information improperly stored in the cell phone. It is also true that a student using his cell phone at school may reasonably be suspected of communicating with another student who would also be subject to disciplinary action for improper cell phone usage” (J.W. v. Desoto County School District, 2010).

I personally believe that the Mississippi court got this case wrong. Searching the student’s phone will not yield any additional evidence that he is in violation of the school’s policy prohibiting possession of the phone at school. Seeing the phone in school already sufficiently established that point. The court argues that “…a student’s decision to violate school rules by bringing contraband on campus and using that contraband within view of teachers appropriately results in a diminished privacy expectation in that contraband.” Clearly the court in Klump did not agree with this reasoning as the court sided with the student. And while New Jersey v. T.L.O. established a different search and seizure standard for educators, the Supreme Court did not in this case suggest that any policy violation whatsoever negated any expectation of privacy a student previously held. The court in J.W. seems to suggest that if a student chooses to deliberately violate a school policy, that student should also be willing to shed any other constitutional protections with respect to the contraband. It should be noted, though, that the Mississippi court did attempt to distinguish the facts of J.W. from Klump by saying J.W. intentionally violated school policy whereas Klump accidentally violated the policy. I’m unconvinced that this should be a salient factor. Does it really matter that much if a policy is accidentally or intentionally violated? Given the many apparent contradictions between Klump and J.W. (and other student cell phone search cases), I would love to see the U.S. Supreme Court review this issue to provide much needed clarity to educators and school law enforcement officers.

At both ends of the continuum of circumstances, the law is fairly clear. For example, if a reputable student advises a staff member that another student has the answers to the math exam on his mobile device, this would almost certainly allow for a search by an administrator. At the other extreme, conducting a search of a cell phone that was confiscated because it was ringing in a student’s backpack would likely not be allowed. Of course, there is quite a bit of gray ground in between to cover.

With all of this said, schools would be wise to include a specific statement in their policies that regulate student-owned devices brought to school. The policy should advise everyone that students who bring their own devices to school are subject to a reasonable search if suspicion arises that the device contains evidence of a violation of school policy or the law. Students, staff, parents, and law enforcement officers working in the schools need to be aware of this policy so that no one is surprised if/when certain actions are taken.

What do you think? Given your knowledge of current law, are educators allowed to search student cell phones simply when they are possessed (with the possession being the sole school policy violation)? Or, should they be allowed to search student cell phones only if they can articulate that they reasonably believe that evidence on the phone will reveal another policy violation? Do you believe the laws need to be changed in this area? Increasing numbers of schools are opening their doors and classrooms to cell phones and other mobile devices. As such, it is imperative that clarity is established in this area of case law and policy.

In a recent post, I fleshed out what we believe should be in a comprehensive sexting policy. I wanted to also mention that it is very important that schools take note and knowledge of students’ due process rights, and ensure that their response action plans do not overstep those personal rights. Here’s what I suggest as it relates to the policy implementation process.

For starters, the administration will have to clearly identify how the policy in place acknowledges and involves the possibility of sexting and the various issues that are implicated – the possession and/or use of cell phones, search and seizure issues, disciplinary options, child pornography statutes, and so forth. Once this is complete, the school board will need to obtain feedback from educational technology personnel, law enforcement, and the district’s legal counsel to cover all necessary groundwork, facets, contingencies, and to comply with the law and the student’s civil protections.

For example, a school might implement a cell phone policy that reminds students about administrator rights to confiscate and search through the contents of student-owned devices based on reasonable suspicion that a school rule violation has occurred. This must then be introduced and explained both to students and to parents, which can occur through assemblies and community meetings. We should never assume that just because we write a policy – and send it home in discipline manuals that parents and students both have to sign – that they actually read it.

In addition, schools may hold an in-service workshop – to include the school board, the superintendent, key administrative figureheads, local law enforcement, and school district attorneys – to educate and then discuss different scenarios that might arise and warrant policy application as part of the formal response. All of this will likely cost a lot of time and resources, but it seems essential as part of a proactive approach to the problem. It could save so much more time and resources by helping to prevent or deter a sexting incident, or – at the very least – by imbuing the school’s response with efficiency, speed, and productivity.