Law Wise September 2021

PUBLISHED BY

LAW WISE Coordinators:

SEPTEMBER 2021 • ISSUE 1

ethany J. Roberts, Chair, LRE Committee; B Lisa Leroux-Smith, Public Services Director; Nicolas Toledo Shump, Law Wise Editor; & Abbey Gilliland-King, Layout & Graphics

Greetings from the Kansas Bar Association (KBA)!

Welcome to the first edition of Law Wise for the 2021-2022 school year.

IN THIS ISSUE Fourth Amendment and Privacy................................1 Fourth Amendment in the Schools...........................3 Privacy in the Digital Age......................................... 5 Exclusionary Rule..............................................7 Lesson Plans............................................................ 8 Terrific Technology for Teachers.............................10 Editor Bio & Contact Info...................................... 11

The Fourth Amendment and Privacy Overview Congress passed the Fourth Amendment in 1789, and it became law in 1791. As one of the Bill of Rights, the protection guaranteed by this Amendment remains central to our freedom against government action.

Date

Event

Sept 6 Labor Day Sept 11 Patriot Day Sept 15 Yom Kippur Sept 17 Constitution Day

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” There are several phrases well-known to most Americans like “unreasonable searches and seizures” and “probable cause.” While law enforcement agencies hold considerable power and resources today, this was not true at the time the Fourth Amendment went into effect.

Concern over policies such as “general warrants” and “writs of assistance” within English common law led to the enshrinement of the protection against “unreasonable” searches at the hands of law enforcement. The

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The Fourth Amendment and Privacy Overview (cont.)

English monarchy had used general warrants to take action against political enemies. In two decisions from the decade prior to the American Revolution, the English courts claimed these warrants violated English common law. Within the colonies, writs of assistance allowed British colonial authorities to search for goods which had not been taxed. These writs did not have any time restraints. Colonist James Otis challenged these writs in a Boston court, though unsuccessfully.

Traditionally, the protections guaranteed by the Fourth Amendment involved restraints on government when it detained or searched individuals. Another important element of this Amendment is the requirement that there be probable cause to obtain a warrant. There are exceptions for searches of cars, street searches, and in emergency situations, too. As

the interpretation of this Amendment developed, the Supreme Court developed the “exclusionary rule.” If the police find evidence during an illegal search, that evidence must be excluded regardless of the guilt of the potential criminal.

Though the U.S. Constitution has proved remarkably durable, the founders could not have anticipated the changes in technology that today make it difficult to not only define what a “search” is, but also what the boundaries of one’s “house” or “property” are. This issue of Law Wise will consider some of these questions as the ubiquity of digital technology and social media complicate our current understanding of privacy.

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The Fourth Amendment in the Schools Though the Fourth Amendment’s protection of privacy has been one of the most cherished freedoms for the average citizen, this protection has not fully extended to students as recent court decisions demonstrate. What these cases illustrate beyond the tension between security and freedom is how the founders could not have anticipated many of these scenarios central to these cases. Does the right to privacy remain the exclusive domain of adults? The cases presented below trace the thinking of the Supreme Court on this question.

New Jersey v. T.L.O. (1985) A teacher found T.L.O., a fourteen-year-old girl and student, smoking cigarettes in the high school bathroom.

This violated school rules, and the teacher brought the student to an administrator who questioned the student. During the questioning, the administrator accused T.L.O. of lying and demanded to see her purse to find the cigarettes. The administrator found a pack of cigarettes and cigarette rolling papers. Knowing that these rolling papers can be used for marijuana, he suspected T.L.O. might be smoking marijuana too. A further search of T.L.O.’s purse uncovered a bag with a grass-like substance, a pipe, a roll of cash, and notes with other students’ names who appeared to owe T.L.O. money. Based on this evidence, the administrator called the police.

T.L.O. and her mother went to the police station where T.L.O. admitted to selling marijuana. Given her age, T.L.O. appeared in Juvenile Court. Despite her lawyer’s attempt to suppress her confession and the evidence from the search on Fourth Amendment grounds, the judge sentenced her to one year of probation. The Appellate Division in New Jersey agreed there had been no Fourth Amendment violation but vacated the initial judgement and sent the case back to Juvenile Court to determine if T.L.O. had voluntarily waived her Fifth Amendment right against self-incrimination.

In the appeal to the New Jersey Supreme Court, the Court held that the actions of the school administrator did not violate T.L.O.’s Fourth Amendment rights. The Court did decide the administrator overstepped his authority by searching through T.L.O.’s purse since possessing cigarettes did not violate school policy. A desire to show T.L.O. had lied did not justify the full search of her purse.

whether unlawfully seized evidence should be suppressed.

Vernonia School District 47J v. Acton (1995) This case involved student athletes in Oregon who school officials discovered using illicit drugs. Concerned about the possibility of this drug use contributing to sports-related injuries, the district adopted a Student Athlete Drug Policy authorizing random urinalysis of student athletes in this district. The district banned James Acton, a football player, from participating in football when he and his parents refused to consent to testing for James. James’ family sued the Vernonia district arguing the drug testing violated James’ Fourth Amendment rights as it was an “unreasonable search.”

In a 6-3 decision, the Supreme Court concluded there was no violation. The majority opinion noted they assessed the search in an attempt at “balancing the intrusion on the individual’s Fourth Amendment interests against the promotion of legitimate governmental interests.” The Court concluded that since the student athletes are under State supervision during school hours, they are under more control than the general population. The Court further concluded the concern over injury outweighed the privacy of these athletes.

Safford United School District v. Redding (2009) Based on a tip that she might have ibuprofen, which violated school policy, school officials conducted a strip search of Savana Redding, an eighth grader at Stafford Middle School. Savana filed suit in the District Court for the District of Arizona where the case was dismissed. Savana’s initial appeal to the U.S. Court of Appeals for the Ninth Circuit was similarly denied. However, in a hearing before the entire Court of Appeals, the court held the school district had violated Savana’s Fourth Amendment rights and the scope of the search and its intrusion was not a reasonable search under the circumstances.

When the case reached the U.S. Supreme Court, in a 6-3 decision, the Court held that Fourth Amendment protections do apply in school settings. Furthermore, the Court held that the school’s action in this case did not violate T.L.O.’s Fourth Amendment rights. The Supreme Court did not determine www.ksbar.org/lawwise

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The Fourth Amendment in the Schools (cont.)

The Supreme Court, in an 8-1 decision, affirmed that Savana’s Fourth Amendment rights had been violated. The majority opinion noted these types of searches must be “reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.” Savana’s case also raised the question of individual school officials being liable for damages. The Court ruled the school officials were not liable, though Justices John Paul Stevens and Ruth Bader Ginsburg disagreed. Stevens wrote, “It does not require a constitutional scholar to conclude that a nude search of a 13-year-old child is an invasion of constitutional rights of some magnitude.”

Robbins v. Lower Merion School District (2010) In what is better known as “the webcam case,” Blake Robbins and his family successfully sued the Lower Merion County School District for using the camera on his schoolissued laptop to take “thousands of webcam photographs and screen shots from student laptops.” The school officials claimed they were trying to locate missing computers. However, Blake first learned of this practice when his assistant principal falsely accused him of selling drugs. An official from the Electronic Privacy Information Center argued, “This was not a safe or secure or even rational thing for the school to be engaged in.”

At the time of the case, Pennsylvania Senator Arlen Specter introduced legislation to make this type of act a federal crime.

In 2010, the school district settled a civil suit for $610,00.00.

Blake Robbins will receive $175,000.00 from a trust fund established in his name.

The Future of the Fourth Amendment in Schools Though recent decisions have generally supported the Fourth Amendment rights of students, the overwhelming student use of technology and embrace of social media platforms continue to complicate these protections. A 2017 report by PBS NewHour noted that Harvard had revoked the admission of ten incoming freshmen for posting violent and racist material to a private Facebook group. This same report reported how a Facebook “altercation” between two students at Dysart High School in Surprise, Arizona resulted in a fight at their school. Safety remains a prime concern for these schools, some of which have been sued by families who did not take action based on social media posts and cyberbullying.

These concerns, while important, are navigated on a slippery slope to ensure safety while also respecting student’s Fourth and First Amendment rights. Further development or changes in technology will likely make this process more difficult to accomplish.

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Privacy in the Digital Age The surveillance capabilities through the use of big data, artificial intelligence, and facial recognition software, among various existing technologies, have provided governments and intelligence agencies with an unprecedented ability to monitor their citizens. The potential threat to privacy has prompted global organizations to take notice. In 2018, the UN Rapporteur on the Right to Privacy issued a 38-page “Draft Legal Instrument on Government-led Surveillance and Privacy.” The Draft states, “Surveillance needs to be limited to what is necessary and proportionate while states need to be able to guarantee a safe and secure environment.” The difficulty lies in determining the formula which allows for a proportionate response respecting both privacy and safety within a particular environment.

Contemporaneously with the UN Rapporteur Draft, the University of Montreal developed their Declaration for Responsible AI Development. The third segment of this Declaration, titled Protection of Privacy and Intimacy Principle, enumerates an eight-point process to protect individuals from “AIS intrusion and data acquisition and archiving systems (DAAS).”

The dangers from surveillance are real and have potentially grave consequences when abused. Organizations like Human Rights Watch note how the rights of women and LGBTQ+ individuals can be violated through surveillance that attempts to monitor what the state defines as immoral behaviors like “extramarital and homosexual sex.” According to reporting from the New York Times, the assassination of Jamal Khashoggi involved Saudi Arabian officials using Pegasus spying software to eavesdrop on Khashoggi prior to his death.

this data from Carpenter’s cell phone companies. This data allowed authorities to place Carpenter within a radius of a half-mile to two miles of the location of the robberies.

In his defense, Carpenter claimed the government violated his Fourth Amendment rights because they did not obtain a warrant to retrieve this information. However, the authorities did have authority through a federal law known as the Stored Communications Act. The standard to obtain this data through federal law is easier than the Fourth Amendment requirements.

According to the Act, disclosure of telecommunications records is allowed when “specific and articulable facts show... that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.”

The case, Carpenter v. United States (2017), hinged on what expectation of privacy exists when a third party is involved.

Justice Kennedy felt these cell phone records remained less sensitive than banking information, which can be obtained without a warrant. The argument is that by using your cell phone and accessing a cell tower of your chosen provider, that record created by the provider diminishes your expectation of privacy. Justice Sotomayor argued average citizens do not want the government to know where they are at all times. The Carpenter case demonstrates the difficulty of defining privacy under the Fourth Amendment, which was established in an age that would never have imagined the today’s digital world.

Though not taking sides, several of the major technology companies filed a friend-of-the-court brief asking for updated standards and guidance on this issue.

Much of the attention given to this issue originated with the 2013 revelations by the former CIA and NSA analyst, Edward Snowden. The desire to encrypt and protect sensitive digital information and to fight back against surveillance and warrantless intrusions exploded because of Snowden’s disclosure of the extent of spying by the United States and other intelligence agencies around the world.

Government surveillance against potential terrorism remains an important and noble goal. Nevertheless, we must safeguard our privacy, even when this safeguarding protects criminal behavior. In 2011, police arrested Timothy Carpenter for a series of robberies of Radio Shack and similar stores in the Detroit area. At his trial, the government introduced evidence called “cell phone location data.” The government obtained

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Privacy in the Digital Age (cont.)

In a 5-4 decision, the Supreme Court overturned the earlier court decisions. It ruled the “third-party doctrine” did not apply to cell-site location information. The dissenting Justices claimed the majority departed from the original intent of the Fourth Amendment, namely protection against unreasonable searches and seizures against one’s property.

A year prior to the Carpenter ruling, the FBI had sued Apple for its refusal to unlock an iPhone belonging to Syed Farook, who had killed 14 individuals in a shooting in San Bernardino, California. A federal judge asked Apple for “reasonable technical assistance” to the FBI. This request would have forced Apple to override its system which automatically disables a phone after ten unsuccessful password attempts. This feature makes the data on a phone inaccessible. In his refusal to comply, Apple CEO Tim Cook explained this would require Apple to write new software, which he feared would create “a master key, capable of opening hundreds of millions of locks.” The case was dismissed when Federal authorities found another provider capable of unlocking the phone.

Digital protections continue to advance and new technologies, like artificial intelligence, enhanced surveillance and the collection of sensitive data. Therefore, the Supreme Court must work to ensure our Fourth Amendment rights will increase in importance and complexity. As the Roman poet Juvenal asked nearly 2000 years ago: “Quis custodiet ipsos custodes? /Who will guard the guards themselves?”

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Origin and History of the Exclusionary Rule In May 1957 in Cleveland, Ohio, police officers entered the home of Dollree Mapp looking for a suspect in a recent bombing as well as evidence of illegal gambling. After their extensive search, they found neither the suspect nor gambling paraphernalia.

Instead, the police found material considered obscene. The State of Ohio had declared similar material illegal, and Mapp received a prison sentence of one to seven years after her conviction. The police did not have a search warrant nor did they present a reason for not having a warrant.

Mapp’s attorney, Alexander Kearns, appealed to the Ohio Supreme Court arguing the police had violated his client’s privacy and the evidence against Ms. Mapp was unconstitutional. The court upheld the conviction and allowed the legitimacy of the evidence found by the police despite the absence of a warrant.

Mapp’s attorney, with assistance from the American Civil Liberties Union (ACLU), appealed this case to the Supreme Court of the United States. Benjamin Berkman, the ACLU attorney, urged the Court to consider the constitutionality of the search and seizure by the police and the allowance of this evidence in Court. Berkman noted federal courts disallowed illegally obtained evidence. In a 5-4 vote, the Court overturned Dollree Mapp’s conviction determining that illegally obtained evidence was not admissible in state or federal courts.

Under the exclusionary rule, if the police finds new evidence because of the illegally obtained evidence, the new evidence remains inadmissible as well. This doctrine is known as “fruit of the poisonous tree.”

Some exceptions to the exclusionary rule do exist:

1. Good Faith Exception

2. Independent Source Doctrine

3. Inevitable Discovery Doctrine

4. Attenuation Doctrine

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Fourth Amendment Search and Seizure Lesson Plan From the American Constitution Society Grades 9-12 Overview: The purpose of this exercise is for students to come away better informed about the Bill of Rights and, more generally, about the American legal and justice systems.

Lesson Duration: Two class sessions Learning Objectives: • Understand the of the importance of the Bill of Rights, specifically the Fourth Amendment • Identify the protections provided by the Fourth Amendment • Compare and contrast the competing interests of the State and the individual citizen • Understand the role of the courts in protecting these Fourth Amendment freedoms • Consider challenges to the application of the Fourth Amendment with newer technology like cell phones and social media Additional Resources: • Handouts/Texts: Fourth Amendment of the United States Constitution • The Supreme Court and Case Law Lesson Activities Class Session 1: • Allow students time to read the text of the Fourth Amendment • Divide students into groups and have each group explore one of the following questions:

-Who is and who is not a “state actor?”

-What types of searches are prohibited?

-What is an “unreasonable seizure?”

-What is “probable cause?”

-What is the “exclusionary rule?”

-What is a “reasonable expectation of privacy?”

Class Session 2: • Bring your students together and review the below cases and statements • Give the background of the process which lead to the court challenge • Review the rulings of the various courts • Discuss the incident and decision with your class -New Jersey v. T.L.O. (1985) -Vernonia School District 47J v. Acton (1995) -Safford v. Redding (2009) -Robbins v. Lower Merion School District (2010) Culminating Activity: • Have students write a short (1-2 page) reflection on the Fourth Amendment protections and student privacy

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Debating the Privacy Line From Commonsense.org Grades 9-12 Overview: Often, the more information we have, the better decisions we’re able to make. The power of data can benefit both individuals and governments. But who can be trusted with the responsibility of having all this data? Can governments collect and use it fairly and without violating our privacy? Help students think through this question and become thoughtful influencers of data policy and practice.

Lesson Duration: Two class sessions Learning Objectives: • Identify the pros and cons of schools having access to students’ social media • Describe the concerns related to government access to social media and cellphone data, including those related to free speech and privacy • Choose a position for or against government access to social media and cellphone data, and support that position with reasons and examples Additional Resources: • PBS NewsHour: “Can Police Use Cellphone Location Data without a Warrant? Supreme Court Ruling Could Have Wide Impact” • Theconversation.com: “How Governments Use Big Data to Violate Human Rights” • Glenn Grunwald: “Why Privacy Matters” (first 8 minutes) • PBS NewsHour: “Schools are Watching Student’s Social Media, Raising Questions About Free Speech”

Lesson Activities Day 1: • Students choose two of the first three resources listed above • Students will watch and read these resources, answering the reasons why:

-The government should have access to all your social media and cellphone data

-The government should not have access to all your social media and cellphone data • Students will watch the final resource about schools monitoring student’s social media • Students will complete a short response on the question: Should the government—and schools—be able to access your social media and cellphone information? If so, under what circumstances?

Day 2: • Using their written responses, have students debate the question regarding government and school access to our social media and cellphone data

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Terrific Technology for Teachers $610K Settlement in School Webcam Spy Case - https://www.cbsnews.com/news/610k-settlement-in-school-webcam-spycase/ A news article regarding the Robbins v. Lower Merion School District case. The district had monitored the webcam from student’s school-issued laptops. One student sued the school district, which settled the case.

Can Police Use Cellphone Location Data without a Warrant? Supreme Court Ruling Could Have Wide Impact https://www.pbs.org/newshour/show/can-police-use-cell-phone-location-data-without-a-warrant-supreme-court-ruling-couldhave-wide-impact A PBS NewsHour story on the 2017 Supreme Court case of Carpenter v. United States. Carpenter was convicted of a series of robberies partially from location data from his cellphone.

Fourth Amendment Text: The United States Constitution - https://constitutioncenter.org/interactive-constitution/ amendment/amendment-iv The text of the Fourth Amendment and commentary from the National Constitution Center’s Interactive Constitution website.

The Fourth Amendment: Search and Seizure - https://www.acslaw.org/wp-content/uploads/2018/08/ACS-2012-CITClesson-plan-4th-Amendment-Middle-School.pdf Part of the Constitution in the Classroom program of the American Constitution Society which includes lesson plans over this Constitutional protection.

How Governments Use Big Data to Violate Human Rights - https://theconversation.com/how-governments-use-big-datato-violate-human-rights-109537 An article from TheConversation.com arguing that governments violate our human rights when they invade our privacy using big data.

New Jersey v. T.L.O. (1985) - https://www.uscourts.gov/educational-resources/educational-activities/facts-and-casesummary-new-jersey-v-tlo A summary of a decision regarding the search of a 14-year old girl’s purse by school administrators. The Supreme Court ruled on whether this violated the student’s Fourth Amendment rights.

Safford United School District v. Redding (2009) - https://www.oyez.org/cases/2008/08-479 School officials strip-searched a middle student looking for over-the-counter medication she allegedly had in violation of school policy. The Supreme Court ruled on whether this violated the student’s Fourth Amendment rights.

Schools are Watching Student’s Social Media, Raising Questions About Free Speech - https://www.youtube.com/ watch?v=pQ1Zr-zEwpc A PBS NewsHour report on schools’ monitoring of student activity on social media.

Vernonia School District 47J v. Acton (1995) - https://www.oyez.org/cases/1994/94-590 A school district learned that student athletes were taking illegal drugs and implemented random urinalysis. One student’s parents refused to consent to their son’s testing. The Supreme Court ruled on whether this violated the student’s Fourth Amendment rights.

Why Privacy Matters - https://www.youtube.com/watch?v=pcSlowAhvUk This is a TED Talk by the investigative journalist Glenn Greenwald who was one of the initial reporters to work with Edward Snowden when he first came public with his accusations of widespread government surveillance.

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iCivics: Resources for Getting Involved & Taking Action www.icivics.org

This site provides teachers with free resources that improve students’ civic knowledge, civic attitudes, and core literacy skills. iCivis provides wonderful tools for educators and students. Take advantage of this great resource!

The KBA has resources for teachers. Visit: https://www.ksbar.org/page/educator_resources.

About the Law Wise Editor Nicolas Toledo Shump is a social studies teacher at St. Teresa’s Academy in Kansas City, MO

where he teaches courses in US Government and Politics and Psychology. He is an online instructor for Constellation Learning where he teaches classes in American Electoral Politics, AP Comparative Government and Politics, AP European History, AP US Government and Politics, AP US History, and AP World History. He served as a columnist for the Topeka Capital-Journal and Gannett Kansas from 2005-2020. Since 2012 he has been a Talk About Literature in Kansas (TALK) Discussion Leader for Humanities Kansas.

He can be reached at nicshump@gmail.com

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We look forward to hearing from you. Email Lisa at llerouxsmith@ksbar.org.

Let us know: • Topics you would like to explore; • Projects and lessons you have developed that you would like us to feature; • Questions you would like to ask an attorney or judge.

Visit www.ksbar.org/lawwise to see archived issues, frequently asked questions, and to receive six issues of Law Wise a year via email.

The Kansas Bar Foundation, with Interest on Lawyers’ Trust Accounts (IOLTA) funding, provides support for this publication. Law Wise provides general information about law-related matters of interest to teachers, students, and the public in Kansas, but does not provide any legal advice, so readers should consult their own lawyers for legal advice. For further information about any projects or articles, contact Lisa Leroux-Smith, public services director, llerouxsmith@ksbar.org or 785-234-5696. Law Wise is published by the Kansas Bar Association, 1200 SW Harrison St., Topeka, KS 66612-1806, during the school year.

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