March 13, 2012 at 6:18 AM ET
A 12-year-old Minnesota girl was reduced to tears while school officials and a police officer rummaged through her private Facebook postings after forcing her to surrender her password, an ACLU lawsuit alleges.
The claims are the latest in a string of tales showing that even password-protected, private online activities might not be safe from curious government agencies and schools. (See last week’s story)
The girl, whose identity is withheld in the lawsuit, came home "crying, depressed, angry, scared and embarrassed" after she was intimidated into divulging her login information by a school counselor and a deputy sheriff, who arrived in uniform, armed with a Taser, the lawsuit alleges.
"(The student now) fears that the school could make her give up her passwords at a moment's notice, at any time, for any reason," the lawsuit claims. It also alleges that password prying is standard practice at the Minnewaska Middle School, which the student still attends. "(Officials) have compelled other students to disclose their private information and have accessed students' online accounts on multiple occasions," it states.
Officials at the Minnewaska Area School District -- which is about 125 miles northwest of Minneapolis -- say the ACLU's version of events is "one-sided," and that the school acted to "prevent disruption," according to a statement e-mailed to msnbc.com by Superintendent Gregory Ohl.
"The district is confident that once all the facts come to light, the district's conduct will be found to be reasonable and appropriate," it said.
When asked if the district has obtained other students’ login information, he responded, “We feel this is not accurate.”
The lawsuit raises the complicated -- and quite unsettled -- legal quandary that balances students' constitutional rights with schools' needs to maintain order and a positive educational environment. For example, can schools punish students who publicly criticize school officials on their own time using social networks?
Federal district courts have handed down contradictory decisions on that issue. Facing a chance to settle the matter, the U.S. Supreme Court in January declined to hear three cases on the issue.
But private social media criticism, intended only for a limited audience behind a password or a privacy wall, raises a different legal issue, said Teresa Nelson, a lawyer for the ACLU in Minnesota.
"The notion that it was a search of her private Facebook content ... the Fourth Amendment applies," she said. "The government has to have a really good reason to do that kind of search," and would need a court order in most cases, she said.
Monitor 'was mean to me'
According to the ACLU's version of events, the girl had moved and entered a new school as a 6th-grade student in the fall of 2010. In early 2011, she felt targeted by a school monitor and posted an update to her friends-only Facebook wall saying she "hated" the monitor because "she was mean to me," using her own computer and while off campus.
Soon after, she was called into the principal's office -- he had obtained a screen shot of the post -- and given detention.
The student subsequently posted another update to her page related to the incident: "I want to know who the f%$# told on me," the complaint says. Again, she was called to the principal's office, and this time was suspended for "insubordination" and banned from a class ski trip.
In March, the student had a second run-in with school authorities. The parent of another student had complained that the girl was talking about sex with that student. The 12-year-old was called out of class by a school counselor and eventually brought into a room with several school officials and the sheriff's deputy, where the password demands began.
The ACLU claims that the school never asked the girl's parents for permission to examine her private Facebook space. The school district doesn't dispute that it obtained the girl's password, but does say it had parental permission.
"Any viewing of (the student's) Facebook account was done with the express consent of her parents," it said in the statement to msnbc.com.
In the First Amendment fight over online criticism related to school, districts and parents are relying on legal interpretations of an outdated 1969 Supreme Court decision knows as “Tinker,” which gives students wide latitude to criticize. That decision famously gave us the phrase, "Students don't shed their constitutional rights at the school house gates." The opinion offers little guidance about rights on the other side of a firewall or a Facebook password, however.
The Tinker case basically found that students can say what they want as long as the speech doesn't cause a disruption at school. But can a school's ability to punish students extend to activity conducted entirely off school grounds?
Dozens of cases over the last decade have failed to hash out the online version of this debate. In one, a Pennsylvania student who was suspended for making a MySpace page that mocked a principal was granted a reprieve because the U.S. Court of Appeals found it wasn't disruptive. In another, a West Virginia student's suspension was upheld after she created a MySpace page where students were encouraged to discuss if a fellow classmate had herpes.
Even though the National School Boards Association asked the U.S. Supreme Court to hear appeals on these two cases in an attempt to break what seems like a legal tie, the nation's top court demurred, leaving behind a lot of legal confusion.
"Things are complicated," said the ACLU’s Nelson. "Kids have been criticizing school officials since there have been school officials. ... If kids had been venting about teachers at McDonald's no one would care."
One important distinction noted by Nelson: While she believes demands for a student's Facebook password were a clear Fourth Amendment violation, there's no constitutional issue raised by a school official learning about a private communication that's volunteered by another student. In other words, students' private Facebook chatter is only as private as the participants make it.
The ACLU of Minnesota offers a rights handbook to students who use social media. While it's specifically applicable only to Minnesota law, its principles are universal.
The pamphlet notes that while school officials in most cases cannot force students to reveal their Facebook login information, officials can search for evidence of violations "if they have reasonable individualized suspicion" about an ongoing violation of school rules.
And while free speech rights may prevent schools from banning students from classes because of non-disruptive but critical Facebook posts, those legal protections do not extend to extracurricular activities. In other words, football players and math club members can be kicked off their squads for anything a school official deems against policy.
It's important to note that while Facebook's terms of service say members cannot give out their passwords or otherwise allow others to view private areas of their accounts. But those same terms say members must be 13 years old to join.
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