School Agrees To Pay Student $33,000 After Teacher Dug Through Her Phone To Find Private Nude Photos

from the privacy dept

The ACLU has announced that a school district in Pennsylvania has settled the case it brought against the district for suspending a student after discovering nude photos on her mobile phone. Apparently, the phone was confiscated after the student used the phone during her homeroom period -- a violation of school policy. That part was fine. Where it became a problem is that the teacher then went through her phone and found some "explicit" photos, described as nude photographs of the girl, which she only had intended to show her boyfriend. The student was then suspended -- and there were threats from prosecutors of charging her with child pornography. The student and the ACLU argued that the school and the teacher had no right to explore the contents of the phone that it had confiscated -- and the school has now agreed to pay $33,000 to settle the lawsuit. As the ACLU notes, this is an area of some confusion, but schools should remember that students do have privacy rights:
The ACLU-PA hoped to use this case to help alert school officials across Pennsylvania to students' privacy rights in their cell phones. Very little case law exists discussing student-cell-phone searches. While the settlement forecloses a court ruling, the case has led the ACLU-PA to contact the Pennsylvania School Boards Association (PSBA), which this week agreed to work with the ACLU towards crafting guidelines for teachers and school officials to help them better handle situations involving student cell phones and other electronic devices without unlawfully invading student privacy. Walczak noted that the goal was to prevent future violations of students' constitutional rights.
However, the overall case is not over, as the ACLU is still pushing forward in a lawsuit against the prosecutor, who is still claiming that the activity of this, and a few other girls, counted as child pornography.


Reader Comments (rss)

(Flattened / Threaded)

  •  
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    Berenerd (profile), Sep 17th, 2010 @ 12:45pm

    ZOMG NAKED BOOBIES!!

    Its not child porn unless someone who IS NOT THE CHILD IN QUESTION took the pictures...

     

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      FormerAC (profile), Sep 17th, 2010 @ 1:01pm

      Re: ZOMG NAKED BOOBIES!!

      Is it child porn if, after seeing the images on the phone, the teacher keeps copies of the pix for his/herself?

       

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        Dark Helmet (profile), Sep 17th, 2010 @ 1:07pm

        Re: Re: ZOMG NAKED BOOBIES!!

        Yes, then HE'S guilty of child porn. But the girl cannot be guilty of child porn for taking pictures of herself, otherwise she damn well better be brought up on statutory rape charges every time she has fun with herself (putting that as nicely as possible)....

         

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          vivaelamor (profile), Sep 17th, 2010 @ 1:56pm

          Re: Re: Re: ZOMG NAKED BOOBIES!!

          "Yes, then HE'S guilty of child porn. But the girl cannot be guilty of child porn for taking pictures of herself, otherwise she damn well better be brought up on statutory rape charges every time she has fun with herself "

          I'm not familiar with the relevant law, but as far as logic goes she could indeed be guilty, though she plainly should be exempted.

           

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            Dark Helmet (profile), Sep 17th, 2010 @ 2:02pm

            Re: Re: Re: Re: ZOMG NAKED BOOBIES!!

            I...don't understand. Considering her guilty of child porn for having naked pictures of herself makes as much logical sense as my being guilty of copyright infringement for making copies of my own book and putting them on my iPad.

            How can she be both the perpetrator and victim of the crime?

             

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              Anonymous Coward, Sep 17th, 2010 @ 2:50pm

              Re: Re: Re: Re: Re: ZOMG NAKED BOOBIES!!

              You don't seem to understand what is both one of the greatest strengths and weaknesses of our legal system. In a civil suit, you have two parties in court, usually one "plaintiff" suing a "defendant", but in a criminal case, the state is the "victim" bringing the charges on the accused, not the person or persons most directly affected by the crime.

              So, if a child chooses to distribute nude photos of themselves, they have indeed committed a crime against the state, and can be prosecuted for it, although I doubt any case would go very far considering the circumstances.

              Your copyright infringement analogy breaks down because of the differences in civil and criminal cases.

               

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                Anonymous Coward, Sep 17th, 2010 @ 7:56pm

                Re: Re: Re: Re: Re: Re: ZOMG NAKED BOOBIES!!

                First, there was no distribution of the pictures, or at least none was noted in the articles I read.

                Second, the Supreme Court disagrees with you on nude pictures and pornography. One does not necessarily equate to the other.

                 

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              Anonymous Coward, Sep 17th, 2010 @ 8:47pm

              Re: Re: Re: Re: Re: ZOMG NAKED BOOBIES!!

              This is the power of the human imagination, anything is possible. If you can think you can make it happen.

              That is not to say it is logical or rational or even real in the real world, people for centuries thought the world was flat.

               

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              btr1701 (profile), Sep 18th, 2010 @ 10:34am

              Re: Re: Re: Re: Re: ZOMG NAKED BOOBIES!!

              > How can she be both the perpetrator and victim of the crime?

              It's not without precedent in the law. Attempted suicide is also a crime and also one where both the victim and the perpetrator are one and the same. Granted, most suicide attempts are sentenced to psychiatric treatment, rather than prison, but the legal concept stands.

               

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              vivaelamor (profile), Sep 18th, 2010 @ 12:45pm

              Re: Re: Re: Re: Re: ZOMG NAKED BOOBIES!!

              "Considering her guilty of child porn for having naked pictures of herself makes as much logical sense as my being guilty of copyright infringement for making copies of my own book and putting them on my iPad."

              Your example of copyright infringement is flawed for the same reason as your rape example. Rape is about consent, copyright infringement is about authorisation. Doing either to yourself is impossible because authorisation/consent are inherent in the fact that you committed the act (in sane people at least, I guess you could come up with some potential scenarios for schizophrenics!).

              AFAIK, the laws about child porn aren't analogous as they refer mainly to the possession or distribution and don't consider anything like consent or authorisation. This might not be an issue if the courts weren't so keen to apply a tenet of strict liability to child porn cases.

              "How can she be both the perpetrator and victim of the crime?"

              I don't think child porn laws are as much about the victims as some people would like to believe. Regardless of the intent, we have plenty of laws that supposedly protect us from ourselves. Possession of drugs is the first example that springs to mind.

               

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                TechDan (profile), Sep 19th, 2010 @ 9:41am

                Re: Re: Re: Re: Re: Re: ZOMG NAKED BOOBIES!!

                Statutory rape actually has nothing to do with consent, only age.

                 

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                  vivaelamor (profile), Sep 20th, 2010 @ 4:11pm

                  Re: Re: Re: Re: Re: Re: Re: ZOMG NAKED BOOBIES!!

                  "Statutory rape actually has nothing to do with consent, only age."

                  It is based on the premise that sufficient consent is not possible due to age. Hardly "nothing to do with consent". Regardless, I don't see how the distinction effects my point?

                   

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      Stuart, Sep 17th, 2010 @ 1:34pm

      Re: ZOMG NAKED BOOBIES!!

      So you are saying that it is not CP if I were to get some 12 year olds to take pictures of themselves and then have them up load them to a web site?

       

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        sdub, Sep 17th, 2010 @ 1:46pm

        Re: Re: ZOMG NAKED BOOBIES!!

        people who use CP instead of Child Porn are usually the users of Child Porn... he is so used to hiding his pics in the "CP" folder

         

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          Will Sizemore (profile), Sep 17th, 2010 @ 1:49pm

          Re: Re: Re: ZOMG NAKED BOOBIES!!

          Did you make that up, or is that in some textbook somewhere?

           

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            Blatant Coward (profile), Sep 17th, 2010 @ 3:04pm

            Re: Re: Re: Re: ZOMG NAKED BOOBIES!!

            That was made up, and put in a textbook somewhere.

            Or will be.

             

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            ltlw0lf (profile), Sep 17th, 2010 @ 11:45pm

            Re: Re: Re: Re: ZOMG NAKED BOOBIES!!

            You can pretty much bet that the San Luis Obispo Sheriff's Dept will soon be making a flyer saying anyone using the initials CP is a user of Child Porn, and some weird story about some guy who dressed up in a superman costume with a "CP" emboldened on his costume giving out candy to kids and having his picture taken with them at Comic Con.

             

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        Anonymous Coward, Sep 17th, 2010 @ 8:42pm

        Re: Re: ZOMG NAKED BOOBIES!!

        You are the child in question?

        or in other words

        Are you a child taking nude pictures of yourself?

         

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    crade (profile), Sep 17th, 2010 @ 12:53pm

    I'm trying to imagine what the teacher is thinking here.. OK, so you confiscate someones phone because they are using it in class.. Even if you ignore privacy rights, what sort of thought process then leads you to go sifting through the contents? What was he hoping to accomplish?

     

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      theangryintern (profile), Sep 17th, 2010 @ 1:00pm

      Re:

      I know what the teacher was thinking (assuming it was a male teacher): He was thinking he could get a cheap thrill seeing if she had any hot pictures on her phone, which if you listen to the media, EVERY teenage girl has nude photos of herself on her phone.

       

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      DH's Love Child (profile), Sep 17th, 2010 @ 1:01pm

      Re:

      I think he was hoping to accomplish just what he did. He wanted to get his jollies looking at her, but had to use the lame excuse of suspending her as a pretense.

       

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    interval (profile), Sep 17th, 2010 @ 1:01pm

    Child Porn:

    Let the New Salem Witch Trials commence.

    And: What the hell is it with the Penn. School District and privacy?

     

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    Anonymous Coward, Sep 17th, 2010 @ 1:33pm

    From the article, it sounds like the Principal is the one that found the images but I may be wrong.

    Why do taxpayers have to pay the $33K? I just don't see why taxpayers should have to pay those costs, they should be paid by the idiots who do things like this? Since the act of violating a students rights and privacy are actually illegal, those costs should be paid by the person violating the law. Of course, the teachers unions would never allow that.

     

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      OtherKevin, Sep 17th, 2010 @ 2:02pm

      Re:

      Because the teacher was acting in their official capacity as a representative of the school district at the time that they were disciplining the student and confiscating their phone. Duh!

       

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      Moderation, Sep 17th, 2010 @ 3:24pm

      Re:

      AC... that's moronic. We live in a representative democracy. Assuming the teacher and school district were doing what they believed was in the best interest of the community they server, it is the COMMUNITIES responsibility to pay. Pay attention to who you vote for and the rules, ideal, and philosophies they intent to implement.

       

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    mojo, Sep 17th, 2010 @ 1:39pm

    Of course she can be brought up on child porn charges - if she shares the photos with anyone it would be "distribution of child porn," it doesn't matter if she's a minor, the crime is still the same.

    She's unlikely to be punished very severely, and in a case like this no one should really bring up any charges. Clearly there was no intent on her part to create "pornography" and giving the pics to her boyfriend is hardly "distribution."

    Not to mention the fact that it's a stretch of the imagination to call photos of a topless high school girl "child porn," even if it does technically qualify.

     

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      Jade, Sep 17th, 2010 @ 6:47pm

      Re:

      Several years ago in Australia there was a 15-year old girl who took nude photos of herself and sent them to her boyfriend (who was 32). Her parents found out and reported the boyfriend to police, the 15-year old was charged with production, distribution and possession of child pornography(only herself, no one else) and got 12 months. Her boyfriend was only charged with possession and escaped a jail term.

       

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      Anonymous Coward, Sep 18th, 2010 @ 9:05am

      Re:

      is it "distribution of child porn," if the person shes share it with is also a minor?

       

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    Will Sizemore (profile), Sep 17th, 2010 @ 1:47pm

    An Alternate Point of View

    Lets not assume that the teacher in question had the motive to, "get his jollies off," prematurely.

    What he did was wrong, but its best to try to understand the potential thought processes.

    He COULD have been informed that there were nude pictures on the phone and he COULD have been simply trying to confirm the presence in order to have her 'properly' charged for having pornography, self created or not, on school grounds.

    Assuming that this is a public school, it is a state government institution, right? Does the State of Pennsylvania authorize its officials, including the teachers themselves, to seize and search? If the state does not authorize this, and the teacher in fact did believe that the cell phone contained nude pictures of that minor student, or any other minor, he should have simply seized it and turned it over to proper authorities for THEM to search, but only if he truly believed that the student was placing herself in some sort of danger in this.

    The charges brought against the student should have been limited to bringing pornography or simply lewd content onto state government property.

    In any case, I don't think that the state of Pennsylvania employs, licenses, and authorizes computer forensic scientists as teachers, and in my opinion only one who is properly trained and licensed to do so, should 'pry.'

    Now, if this teacher was the parent or legal guardian of any of the students 'exposed' I might change my opinion slightly.

    If the teacher has a photographic memory and revisits the images mentally, i

     

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      Jon, Sep 17th, 2010 @ 3:22pm

      Re: An Alternate Point of View

      He COULD have been informed that there were nude pictures on the phone and he COULD have been simply trying to confirm the presence in order to have her 'properly' charged for having pornography, self created or not, on school grounds.

      "Properly charged?" For what? Is that even a law?

      Bottom line is the teacher had no business looking at her phone. Period. He was right taking it, but even if he "thought" there may have been something on her phone. He cannot look on there. And I agree with a previous post that the teacher or the union should be paying the settlement, not the taxpayers.

       

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      Anonymous Coward, Sep 17th, 2010 @ 5:00pm

      Re: An Alternate Point of View

      Entirely too many "could" in this scenario. Lets just go with facts: he did something he had no right to do.

       

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        Anonymous Coward, Sep 18th, 2010 @ 11:12pm

        Re: Re: An Alternate Point of View

        Nothing wrong with that conclusion. I think what Will Sizemore is describing is a scenario where the authorities at the school can properly investigate a case where a student has these types of photos on their cellphones.

        Techdirt did a couple of write-ups of a case where one such investigation went seriously wrong. The assistant principal doing the investigation ended up getting arrested. That school district wasn't as lucky-- the legal fees to "clear" the guy's name was in $167k range.

        Clearly some procedures needs to be established to protect not only the students involved but also the (non-law enforcement) school authorities.

         

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          identicon
          Anonymous Coward, Sep 19th, 2010 @ 3:00pm

          Re: Re: Re: An Alternate Point of View

          Or, you know, not assume stuff and not do something you have no right to do.

           

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    DS, Sep 17th, 2010 @ 1:53pm

    This thread is useless without pics.

     

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    Will Sizemore (profile), Sep 17th, 2010 @ 1:54pm

    An afterthought...

    A great follow-up article would be the families or the school board filing suit on the cell phone manufacturer and/or service provider to child-proof the cellphone cameras, calling for legislation that all photos taken by a cellphone cameras are automatically shared with the adult legal guardian paying for the phone.

    Of course, prepaid, no-contract phones, and phones paid for by 18-years-or-older significant others still in school would slip through.

    I seriously doubt any such case would fly, but I'll keep my eyes out for just such an article.

     

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    ofb2632 (profile), Sep 17th, 2010 @ 3:43pm

    what kind of teacher is that?

    The teacher is the one that should be jailed. First of all, he has no legal grounds to invade someones property like that. That is a serious abuse of power.

     

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    abc gum, Sep 17th, 2010 @ 6:03pm

    I thought cell phones had password protection.
    Might be a good idea to use that function whether you have pics on it or not.

     

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    Anonymous Coward, Sep 17th, 2010 @ 6:29pm

    So acting in the schools best interest forces the school to pay $33K? The pictures should have never been viewed, it was a violation of rights and probably a violation of the law. The person violating the law should pay the fine, not taxpayers.

     

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    identicon
    Anonymous Coward, Sep 17th, 2010 @ 10:07pm

    What bugs me is that CP is not about violence anymore is about something more disturbing "morality".

    I have no sympathy for people rapping anything, a horse, a dog, a child, woman or man but I do have a problem when those laws intended to halt violence and exploitation are being used to halt sexual discovery from young people and probably in the process causing irreparable psychological trauma.

    Go to any country that women has less rights and ask children if they would mind having sex with an older women, they not only will tell you it is a good thing they want it bad, it is a cultural thing, so how much damage we as a culture are inflicting on the young, with this moral panic?

    People a transforming something that started as a serious and valid concern and transforming it into something that will be mocked.

    Pedobear, pedopope and other meme's already started this is a reflection of what others are thinking but don't yet feel comfortable doing it in public, but will stay that way or things like these would transform the public opinion?

    Specially when people realize they don't need special laws to go after bad people.

     

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    btr1701 (profile), Sep 18th, 2010 @ 10:39am

    Common Sense

    You'd think all these tech savvy kids would have the common sense to activate the password protection on their cell phone-- especially if they know that they have nude pictures of themselves on it and that they're planning on using it in class against the rules.

     

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      Mikael (profile), Sep 19th, 2010 @ 12:55pm

      Re: Common Sense

      Maybe she DID know how to set the password and chose not to. Maybe she did this all in an attempt to get money. She could have at least suspected that they would look through her phone if confiscated, took the picture and left it on the phone making sure not to actually send it to anyone, used the phone when she knew she was not supposed to just to get it taken away, and then let the dominoes fall. The worst that could have happened had the pics not been found was that she got her phone back and did the suspension. Best case scenario would be exactly what happened. Someone found the pictures, made a big deal about it, and she got a payout large enough for either a really nice car, or some college tuition.

      Makes me wish I was back in high school with the tech out today.

       

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    identicon
    Anonymous Coward, Sep 18th, 2010 @ 1:09pm

    This just shows how flawed the legal system is. If someone takes pictures of themselves that's their own choice, and the pictures would more likely be "nudity" than "pornography" (there is a difference there but lots of people don't care I guess.)
    I think "the law" needs to be more "human" and less "automated machine". If it's obvious that the pictures were just between the girl and her boyfriend they shouldn't say "Sorry the law says "blahblahblah" so my hands are tied." they should look at it as a human being and fix the problem instead of finalizing the one that shouldn't have been there in the first place. I'm sure they could be doing something better with their time, like looking for people who actually distribute child pornography or force children into it, than forcing the law on a girl whose choice it was to show her boyfriend her body.

     

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    Paddy Duke (profile), Sep 20th, 2010 @ 4:15am

    Harm?

    Just to play devil’s advocate here for a moment, how much does the distribution or possession of child pornography, especially photos/videos made by the child themselves, harm any children?

    I understand the harm inherent in forcing or coercing young children into sexual acts, including the production of child porn. But once it has been made, either by coercion or voluntarily, could its existence reduce further instances of sexual abuse by providing some release for paedophiles, negating the need to include real children?

    Obviously child abuse is a bad thing, but possession and distribution of child porn seem like strange charges. Surely it’s the adult producers you want to go after? They are, after all, the ones doing the real harm.

     

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