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EFF: Tenn. School's Tech, Social Media Policies Are Unconstitutional

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By Mark Wilson, Esq. on October 28, 2014 1:13 PM

The Electronic Frontier Foundation has sent quite a letter to the superintendent of schools in Williamson County, Tennessee, calling out the district's Bring Your Own Technology (BYOT) policy for its restrictions on student speech online.

BYOT policies are becoming increasingly popular as schools realize it's in everyone's best interest to let kids bring their own electronic devices from home. But Williamson County's policies appear to be a little on the fatally overbroad side.

Social Media Lockdown

The policy purports to unilaterally prohibit posting photos of any school employees or students on any social media site, in or out of school, during school hours or not, without a teacher or administrator's permission. It also claims the right to search any student's personal electronic devices at any time, with no threshold of suspicion. Finally, the policy would let school officials monitor a student's network traffic without any suspicion.

First of all, as the EFF notes in its letter, even if the policy were interpreted to apply only to BYOT program participants (and it's not entirely clear that the social media restriction does), the government can't deny a benefit to students on a basis that's constitutionally protected -- so if the policy infringes students' First Amendment rights, that's a problem.

But arguably, the third objection -- inspecting network traffic -- may not be actionable. The EFF's letter cites only two cases -- one from the Court of Appeals for the Armed Forces, and another from a New York County Court -- for the proposition that there's an expectation of privacy in network traffic. It's one thing to say that, normatively, there should be privacy in network traffic, but quite another to claim that, descriptively, that's the law.

The other two claims, however, appear to be solid. It's well established that schools can't conduct random searches of students' personal property without some kind of articulable suspicion. It's also well established that school control over student actions happening outside of school after school hours is minimal; the social media restrictions probably violate the First Amendment. (The restrictions also strangely contain no ability for a photographic subject to consent to his or her photo being used on social media.)

There's a Better Way

Cyberbullying, which is usually the justification offered for Draconian social media policies, is a real concern. But it's hard to craft such policies without running afoul of the First Amendment. And rather than walk the delicate balance, some schools have opted to be blunt, requiring all students to agree to mandatory policies or requiring students to consent if they want to join a club or play a sport.

Under Williamson County's policy, a student posting a picture on Facebook of a teacher he doesn't like is subject to discipline, even though the activity is otherwise protected. Even if the school claimed it wasn't protected, it would bear the burden, under Tinker v. Des Moines, of showing that the posting would "materially and substantially interfere" with school discipline.

There's a way to deal with the legitimate concerns that new communication methods present to schools and children, but as the EFF's letter asserts, a lockdown like this isn't that way.

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