By Michelle Ball, California Education Attorney for Students since 1995
Cell phones are often searched by school officials to gather information in discipline proceedings or to search for crimes alleged. Parents and students are usually at a loss on whether to allow a search of a cell phone when asked by school officials and the proper scope of any search. Can a school force a student to allow a search of their cell phone? What is the scope of the search allowed? And, what if information on another “crime” is found during the search? A new law, effective this year (2016), may (or may not) bring some closure to these issues.
In October of 2015, the Governor signed into law SB (Senate Bill) 178, also known as the “Electronic Communications Privacy Act” which is reflected in California Penal Code §§1546-1546.4. Penal Code Section 1546.1(c) states:
“A government entity may access electronic device information by means of physical interaction or electronic communication with the device only as follows:
(1) Pursuant to a warrant issued pursuant to Chapter 3 (commencing with Section 1523) and subject to subdivision (d).
(2) Pursuant to a wiretap order issued pursuant to Chapter 1.4 (commencing with Section 629.50) of Title 15 of Part 1.
(3) With the specific consent of the authorized possessor of the device.
(4) With the specific consent of the owner of the device, only when the device has been reported as lost or stolen.
(5) If the government entity, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires access to the electronic device information.”
Why is this relevant for students and parents? This code restrictsgovernment entitiesfrom searching electronic devices without the authorized possessor’s consent unless they have a search warrant, a wiretap order, it is an emergency involving potential death or serious physical injury, or the device has been reported lost or stolen. Public school and school district employees are agents of the government who work for the government run state school system. Many parents often overlook this fact when interacting with school employees. As factually vice principals, principals and other school staff are government employees, this law should apply to them.
This sounds fantastic at first glance, right? A student can refuse to let that demanding vice principal search his/her phone? It seems so for now, but new codes are always “new” and untested, so we will have to see how this code plays out in the school system. On the one hand, it seems pretty clear that no government entity can search without consent or warrant, etc. On the other hand, schools often get away with things which are not allowed in other contexts (searches based on reasonable suspicion, discipline for wearing shirt with American flag, expulsion for off campus drug sign, etc.). There are many examples of this, so I would apply this code with caution. We will see how it works out in the school context. For now, let’s tentatively hope that it means what it says and will stop nosy school officials from snooping in cell phones looking for student “bad acts.”
Regardless, I have found that many students consent to a search of their phone when asked due to thinking they have nothing to hide, or they must do it. If the school officials have consent, they may search away.
Although students are “innocent” in many situations, this does not mean they don’t have other damning evidence on their phones which may be encountered during a school official’s search. This data, such as pictures, texts, email, etc. may provide proof of a different crime than the one school officials are investigating, and could be used against the student. As such, it may be a good option just to decline a request for a search prior to it getting started if possible.
I expect students to be hassled about search refusals due to the newness of this law, but hopefully school officials will respect students’ right to privacy as reflected in this law. I find this respect unlikely, unfortunately. I also believe schools will try to balk this law and overturn it as it applies to them. With the way the courts have gone, I foresee them wiggling out of this law in the school setting. I hope I am wrong.
The scope of any government search is not defined if voluntary consent is given. If a warrant is served, the search may be limited to fit the scope of the warrant.
This law should make for some fireworks. Hopefully it will lessen the almost continuous intrusions into students’ phones and personal data, which is rather common these days.
Please see my disclaimer. This is legal information, not legal advice and no attorney-client relationship is formed by this posting. This blog may not be reproduced without permission from the author and proper attribution of authorship. This blog may not reflect the current state of the law.