Legal
Instruction and Support for School Leaders
School
Cyber e-Law Update
Technology
Law and News Updates for K-12 Educators
Updated: December 30,
2008
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here to join our Cyber e-Law Updates and Announcement Listserv; select
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Headline
Links
New
Postings (as of December 30,
2008)
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CyberSafety–Social
Networking: Congress Passes
New Internet Safety Training Requirement
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CyberSpeech—Social Networking: Charlotte teachersÕ Facebook Posts
Result in Disciplinary Action
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CyberSpeech –Student Discipline: High School Student Suspended for
Facebook Posting about Teacher
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CyberSystems—Copyright
Infringement: Law Professor Taking on Recording
Industry
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CyberSafety—Social
Networking: Recent Study Reveals Some Benefits to
Teen Online Social Networking
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CyberSafety—Social
Networking: Student Posts His Suicide Online
While Others Observe
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CyberSafety—Social
Networking: Social Websites Potentially Problematic
for Job Applicants and Employees
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CyberSafety—Privacy: Bug-sized Flying Spy Drones on the Drawing Board
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CyberSchooling—Online
Instruction: High School
Students in Alabama Required to Pass Online Course to Graduate
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CyberSafety:
Digital Identification Services Present Challenging Dilemmas to Schools
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CyberSafety:
Student Security Concerns Accompany Online Courses
Past
Postings (as
of November 10, 2008)
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CyberSafety: Parents and schools sometimes at odds
over extent of student Internet access.
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CyberSpeech – Personnel – Due Process: Court
uphold nonrenewal of teacher based on improper MySpace postings.
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CyberSystems – Open Meetings: Attorney General of
Arizona approves online school board meetings
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CyberSafety:
Child Online Protection Act struck down by Third Circuit Court of
Appeals.
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CyberSystems – E-rate: FCC contemplates increasing types
of technology eligible for E-rate funding.
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CyberSystems – Public Records: Wake CountyÕs $17,000 public records
request.
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CyberScholarship – Ethics: Online test bank raises ethical questions
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CyberSystems – Record Retention: Sun Microsystems provides guidance to
electronic storage concerns.
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CyberSafety: N.C. Appeals Court overturns cyber-stalking decision.
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CyberSystems
– Employee Privacy:
Employees gain privacy protections in text messages.
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CyberSpeech: Internet service providers walk free speech fine line.
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CyberSystems – Record Retention: New law requires additional attention to
archiving email.
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CyberSafety: "Digital Disconnect" –
Parents in the dark regarding children's Internet use.
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CyberSafety: Police departments utilize text messaging to fight crime.
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CyberScholastics – Ethics: GMAT test cracking down on online
cheaters.
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CyberNews – Schooling –
Instruction: Digital
assessment use can be greatly improved.
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CyberNews – Systems – Network
Integrity: Computer
hackers targeting school system computers to launch attacks
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CyberScholastics – Equity: Digital-equity gap troubling to
educators.
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CyberSpeech: 4th Circuit upholds system's right to exclude
opposing policy viewpoints on its website and e-mail.
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CyberSafety: Pornography charges result in North
Carolina Central University firings.
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CyberSafety:
U.S. Supreme Court upholds child porn law provision.
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CyberSpeech – Employees: 4th Circuit rules employee's e-mail forwarding civil rights
materials is not protected speech.
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CyberSystems – Record Retention: N.C. e-mail panel
makes recommendations.
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CyberSafety: Wake County Schools aim to shelter students
from cybercrime.
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CyberSafety:
N.C. teen cell phone law largely unheeded.
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CyberSpeech:
2nd Circuit upholds discipline for vulgar blog comments about school
officials.
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CyberSpeech – Religious Establishment: School
website with link to anti-homosexuality websites was permissible.
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CyberSafety – Employee Privacy: Bus driver's
privacy rights not violated by installation of video camera on bus.
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CyberSpeech: Court
rejects conviction of student who posts profane statements about principal on
networking site.
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CyberSystems – Copyright: Company not
liable to students for copyright damages related to plagiarism software.
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CyberSafety – Student Privacy: School system
cell phone ban did not violate parents' due process rights.
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CyberSystems: Wisconsin law to keep cyber schools
running.
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CyberSafety: The naked truth about teen photo distribution.
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CyberSystems: Spam celebrates 30 years of clogging e-mail
inboxes.
Summaries
Congress recently passed the ÒProtecting Children in the 21stCentury
ActÓ as part of a larger bill dealing with broadband access. The child protection provisions call
for a nationwide collaborative effort directed by the Federal Trade Commission
(FTC) to increase public awareness and provide education on effective strategies
that promote safe use of the Internet by children. The Act also calls for annual reporting of such efforts and
establishing an ÒOnline Safety and TechnologyÓ working group to study and
assess the national efforts and technologies designed to improve child
safety. In addition, each school applying for federal E-rate funding
(pursuant to the ChildrenÕs Internet Protection Act) must additionally certify
that
Òas part of its internet
safety policy [it] is educating students about appropriate online behavior,
including interacting with other individuals on social networking websites and
in chatrooms and cyberbullying awareness and response.ÕÕ
Read the legislation (PDF).
Several teachers in the Charlotte-Mecklenburg school system
have been investigated and some disciplined for posting inappropriate images
and material on social networking sites like Facebook. For example, a black teacher used
the ÒNÓ word, several teachers posted images of themselves in sexually
suggestive poses, one teacher referred to her school as Òthe most ghetto school
in CharlotteÓ and to her students as Òchitlins,Ó and a special education
teacher stated, "I hate my students!"
Some of the teachers were suspended with pay pending investigation. Some faced dismissal for violations, in
part, of the districtÕs code of conduct prohibiting Òunethical or lascivious
conduct,Ó and others faced lesser disciplinary actions. The district reports
that it must address these types of problems each year. It was sending a memo to all 19,000 of
its employees reminding them of appropriate personal web practices. Source:
Charlotte
Observer, Nov. 12, 2008.
CyberSpeech—Student Discipline: High School Student Suspended for
Facebook Posting about Teacher
A
Florida charter high school student sued her principal after being suspended
after posting to her Facebook page a picture of a teacher she described as Òthe
worst teacher IÕve ever met.Ó The
principal suspended the student for three days for actions he deemed
Ôcyberbullying harassment towards a staff memberÕ and Ôdisruptive behavior.Õ
Attorneys
for the student countered by claiming the Facebook posting was protected First
Amendment speech because it occurred off campus, was devoid of threats of
violence, and did not disrupt school activities. The studentÕs suit sought the revocation of the three day
suspension from her permanent record.
Source: NSBA Legal Clips,
Dec. 11, 2008. Read the
story.
Charles
Nesson, a Harvard law professor, has agreed to defend a Boston University
graduate student accused of violating copyright law by participating in
unlawful music file sharing activities.
Under the Digital Theft Deterrence and Copyright Damages Improvement Act
of 1999, Nesson argues the Recording Industry Association of America (RIAA) is
essentially empowered to enforce a criminal law civilly by exacting payments
from violators. This arrangement,
he argues, is unconstitutional. He
also contends that the RIAA has abused the legal process by intimidating
violators and pressuring them to settle out of court.
RIAA
officials, on the other hand, maintain their response has been warranted in
light of the industryÕs multi-billion dollar losses stemming, in part, from
illegal online file sharing.
Source: eSchool News
Online, Nov. 24, 2008.
A recent study of 800 students and parents examining 5000
hours of social networking use revealed that the extent of some perceived
dangers and downsides of social networking may be overblown and that we may
have confused notions about how many students are using these sites. Essentially, the study describes
how teens are using social networking sites; however, it cautions that little
evidence exists to gauge the long-term effects. The study highlighted the literary, technological, and
socialization benefits social networking sites offer, and confirmed teen habits
of weaving networking into their daily routines, often beginning and ending
their days with such use. The
study showed teens using these sites to learn from one another or groups of
like-minded individuals, developing skills in setting up a web site and
presenting themselves, learning to interact with one another, and respecting
othersÕ interests.
Source: Raleigh News & Observer (N.Y Times), Nov. 20,
2008.
Abraham
Biggs, a 19-year old bipolar college student in Florida, committed suicide by drug
overdose in front of an online audience that watched his death live via
webcam. Viewers could Òtune inÓ
during a 12-hour period prior to, during, and after the death, and could post
text comments. Eventually a
user notified web host officials who tracked down the location and notified
police who found Biggs after it was too late. The news report states that some online users
encouraged Biggs to go through with it, some tried to persuade him to stop, and
others did not realize it was anything more than a prank until his death was
apparent, to which at least one viewer posted her reaction in horror:
ÒOMG.Ó One popular culture expert
noted how common such public displays of intimate details are becoming, stating
"If it's not recorded or documented, then it doesn't even seem
worthwhile. For today's
generation, it might seem, 'What's the point of doing it if everyone isn't
going to see it?' " Source: News
and Observer (AP), Nov. 22, 2008.
Social
websites are growing in popularity.
Increasingly, employers and others are searching these sites to gather
information about job applicants and other people of interest. Teachers in the Charlotte School
System, Durham police officers, and a college football player are just some of
the recent examples of individuals suffering the consequences of such
postings. One report indicates
that over 70 million users have registered for Facebook accounts this year
alone; a remarkable fact given FacebookÕs introduction just five years ago.
Source: Raleigh
News & Observer, Nov. 18, 2008.
United
States military researchers are developing plans to create miniature
drones. The Micro Aerial Vehicles
(MAVs) are designed to ÒflyÓ into suspected enemy quarters to video- and
audio-record data about, and even potentially attack, enemies. Some designs call for a bumble
bee-sized drone. Development of
bird-sized drones is anticipated by 2015 and of bug-sized drones by 2030. Source: News
and Observer (AP), Nov. 22, 2008
Beginning with the 2009-2010 school year, Alabama high school
students will be required to pass an online distance learning class in order to
graduate. Many schools, especially
small ones where students may not have access to some advanced elective
courses, already offer these courses where teacher and student may not ever
meet face-to-face. Source: Source: NSBA Legal Clips, Nov. 20,
2008. Read the Story.
As
child safety advocates seek new and improved ways to keep children safe online,
a method known as Òdigital identificationÓ has sparked controversy among some
school officials. eGuardian, a new
digital identification provider, claims its product keeps children safe by
communicating with search engines and social networking sites and preventing
children from accessing inappropriate content based on their age. The controversy stems primarily from
eGuardianÕs use of school systems to verify information provided to it by
parents who purchase the online child protection system. In essence, eGuardian pays schools to
verify the information subscribers submit about their children. eGuardian also actively seeks to
partner with schools, promising the school $13 of the $29 registration fee for
each child subscribed.
Some
school officials, though, are hesitant to become involved in any process
whereby the school divulges student information to third parties, even in the
name of online student safety. One
skeptical official stated, Ò[s]chool systems need to ensure that student
information is kept private as required by the Family Education Rights and
Privacy Act. Parents can make
individual choices if they wish to use digital ID software without school
involvement.Ó Source: eSchool News
Online, Nov. 17, 2008. Read
the story.
As
schools seek to simultaneously enhance course offerings and trim budgets,
online courses have become increasingly popular. However, this has also sparked concerns about the online
safety of students enrolled in such classes. Source: eSchool News Online, Nov. 17, 2008. Read
the articles.
A
recent news article notes a conflict between school officials and parents
regarding the extent to which Internet access should be available to students.
Officials in the Wake County schools contend that the InternetÕs value
precludes barring students from its use, despite parentsÕ request to prohibit
access for their children.
The system's chief technology officer states Òthere are educational
situations where a child needs to go on the Internet with
supervision." One parent
recently filed a grievance that was denied by the Wake school board. Said the parent, "The denial of
access form is meaningless if they're going to ask if you want to deny access,
then they should stand by their word."
The
director of North CarolinaÕs Virtual Public School comments, "How do you
prepare students to be globally competitive in the 21st century without them
having Internet access?"
Research, communications, and even testing are taking place,
increasingly, online. Given
budget constraints, the Internet also makes more sense than other expensive
educational resources. All
parties acknowledge that Internet filters cannot block all inappropriate materials,
so it becomes a matter of degree of risk and affect.
The
Wake board policy allows teachers to provide supervised Internet access for
in-class activities. The Johnston County school system allows concerned parents
to participate with their child in online activities to assure their childÕs
protection. The Chapel
Hill-Carrboro system leaves the decision to individual school leaders with
teachers expected to collaborate with parents. The Durham system offers
alternative activities in such instances. Source: News & Observer, October 7, 2008.
CyberSpeech – Personnel – Private Postings:
Court upholds nonrenewal of teacher based on improper MySpace postings. Spanierman v. Hughes,
No. 06-1196 (D. Conn. Sept. 16, 2008)
A
federal district court in Connecticut upheld a school systemÕs nonrenewal of
high school non-tenured English teacher for improper postings on his personal
MySpace webpage. The teacher
communicated with students regarding school- and non-school matters.
Upon investigation, officials conclude the site contained inappropriate Òpeer-likeÓ discussions. When confronted, the teacher initially
closed the site but then created a new profile. The teacher was suspended with
pay and later informed that he had exercised poor judgment and would not be
renewed.
The
teacher sued the superintendent, assistant superintendent, and principal,
alleging violations of his due process, equal protection, and First Amendment
rights. The district
court dismissed the suit in favor of the defendants. The court ruled that the teacher had no due process rights
because he had no property interest in continued employment – that is, he
had no guarantee that his contract would be renewed and the defendantsÕ actions
were not grossly arbitrary.
On
the equal protection claim, based on a Òclass of oneÓ theory, the court relied
the U.S. Supreme Court case of Engquist v. Oregon Department of Agriculture,
decided earlier in 2008, which
Òexplicitly held that Ôthe class-of-one theory of equal protection does
not apply in the public employment context.ÕÓ Finally, the court rejected the teacherÕs claim that
the defendants retaliated against him for exercising his free speech
rights. It ruled that the
teacherÕs MySpace content was almost entirely of a private matter, not matter
of public concern – an essential element to an employee free speech
claim. Furthermore, the plaintiff
lacked evidence of any retaliatory motive by school officials.
Source:
National School Board Association, Legal Clips (Oct. 2, 2008)
CyberSystems
– Open Meetings: Attorney General of Arizona approves online school board
meetings
The
Arizona Attorney General (A.G.), interpreting that stateÕs Open Meetings Law,
has determined that the law permits school boards to deliberate and discuss
business maters via online meetings. The stateÕs law includes in its definition
of a meeting includes Òthe gathering of a public body through technological
devices and would encompass serial communications of a quorum of the public
body through the Internet or other online medium.Ó To conform to the requirement that the public have
access to agency meetings, the A.G. instructed school boards to gives proper
notice of and provide public access to such meetings. In a previous opinion, the attorney general pointed
out that serial e-mail communications did not comply with the notice and public
access requirements even thought such communications meet the statuteÕs
definition of a Òmeeting.Ó The
A.G. also noted that boards must offer reasonable accommodations to disabled
members of the public who request them in order to have access to any
electronic meetings.
ACLU
v. Mukasey,
No.
07-2539 (3d Cir. July 22, 2008).
The
Third Circuit Court of Appeals ruled that the federal Child Online Protection
Act (COPA) was unconstitutional because of First Amendment free speech
violations. COPA dates back over a decade and has undergone much
litigation. The United States
Supreme Court previously overturned a 2002 Third Circuit ruling that COPAÕs
Òcontemporary community standardsÓ was overbroad in determining if online
materials were harmful to minors.
Subsequently, the Supreme Court upheld a district court preliminary
injunction preventing COPAÕs enforcement because less restrictive methods
existed to achieve its goal of protecting minors from harmful Internet content.
In
the present case, the Third Circuit held that the federal government failed to
satisfy its burden of proof Òthat COPA is a more effective and less restrictive
alternative to the use of Internet filtersÉÓ in accomplishing its objectives. (In this instance the government must
find the least restrictive means of doing so since free speech rights are
placed in jeopardy.) Thus, despite
the government having a Òcompelling interestÓ in preventing minors from viewing
harmful material online, COPA was too broad and restricted online content that
Òadults have a constitutional right to receive.Ó
FCC contemplates increasing types of technology eligible
for E-rate funding.
The
Federal Communications Commission (FCC) is receiving comments on whether any
additional types of services should be covered under the E-rate program. These include filtering software, additional telephone
services, dark fiber, text messaging, firewall service, anti-virus/anti-spam
software, scheduling services, telephone broadcast messaging, and certain
wireless Internet access applications. The FCC also seeks comment on whether to
retain interconnected Voice over Internet Protocol (interconnected VoIP) as an
eligible service. Comments are due by September 18, 2008, and reply comments
are due by October 3, 2008. The FCC proposed rule
if found at 73 Fed. Reg. 48,352
Source:
National School Boards Association (date unknown).
The
Wake County School District recently endured a public records request from the
Raleigh News & Observer that cost it an estimated $17,000, primarily in
staff time spent hand sorting through approximately 3,000 emails looking for
the 219 messages relating to the DistrictÕs assignment of over 9,000
students. Since this incident, the
Wake County School District has purchased new software making similar searches
in the future significantly less time-consuming and costly.
Read
the story. Source: eSchoolNews.com, Aug. 1, 2006.
To
combat inequities he perceived between the groups (fraternities, sororities,
social groups, etc.) who had assembled comprehensive test banks, a St. Louis
University student created postyourtest.com
to level the playing field on college campuses. The creator maintains his site merely provides students with
an idea of what a professor feels is important in a given class and does not
promote academic dishonesty because test answers are not always given. Additionally, it could serve to
encourage professors to change their tests more regularly. Opponents of the website liken it to
pay for term paper websites that encourage plagiarism and academic
dishonesty. To date, though, the
site is still active. See it here.
Source: eSchoolNews.com, Aug. 11, 2008.
Over
100,000 students from two school districts in Florida and Virginia had their
Social Security numbers, standardized test scores, and dates of birth exposed
via Princeton ReviewÕs website.
The school districts had contracts with Princeton Review to increase
their studentsÕ standardized test scores.
When Princeton Review switched Internet providers in June, data from
these two districts were accessible via a single web address. Princeton Review has since rectified
the situation and maintains only Òhighly sophisticated computer usersÓ could
have accessed student information.
Source: eSchoolNews.com, Aug. 19, 2008.
To
regulate Internet and other electronic technology uses in schools, most school
districts have relied on acceptable use policies (AUP). With the increasing
prominence of technology in basic instruction, it is increasingly problematic
to suspend technology use for AUP violatorsAlternative remedies include using
non-networked computers or restricted access machines as well as other
traditional forms of student discipline.
Source: eSchoolNews.com, July 23, 2008.
Cyberlaw Archive Note. We thought the following indented news stories
from previous years from the eSchool News Online archive were worth listing
as reminders of common electronic records issues of increasing prominence and
concern.
It seems worth reminding readers that since
December 1, 2006, federal procedural rules approved by the United States
Supreme Court require schools and
other employers to archive Òelectronically stored informationÓ including email,
instant messages (IM), and any other digital communications produced by
employees. The intent of the rule
is to ensure that in the event of a litigation involving the school, the
parties will have access to any and all electronic communications that impact
the proceedings. n the event of a lawsuit..
Technology experts recommend schools take a
series of steps to gauge their compliance with this new rule including
conducting technology inventories to determine current email storage and data
back-up capabilities, establish guidelines for the information that can be deleted
and that which must be saved, and decide how and where to store important data
such that it is easily accessible in case a problem arises.
In response to this issue, a number of schools
have turned to outside companies specializing in storing, searching, and
tracking electronic communications.
While an added expense, this arrangement could save schools significant
labor costs associated with manually searching through a districtÕs electronic
communications should a litigation arise.
After six months of the effective date of these
new rules it was reported that some 90% of school districts had yet to
institute compliance preparedness plans. . This is
attributable in part to the uncertainty of how to archive electronic communications, especially given
schoolsÕ financial limits.
Read article. Source: eSchoolNews.com, Dec. 8, 2006.
Read
article. Source: eSchoolNews.com, Jan. 4, 2007
WisconsinÕs Attorney General (A.G.) ruled that
Oshkosh School Board members violated the stateÕs open records laws by deleting
email pertaining to the boardÕs districting and consolidation plans. An area newspaper filed the request
asking the A.G. whether any email correspondence by the board, internal or
between it and its constituents, should be considered public records. The A.G. ruled unequivocally that
failing to save all messages violated the stateÕs open records laws. [North
CarolinaÕs public records law would require similar compliance.]
In response, the school board set up an archive
mailbox at the district office for each board member that saves all email
correspondence for the statutorily mandated time period.
Read
the article. Source: eSchoolNews.com, Jan. 1, 2003.
The use of technologically-enhanced ÔmeetingsÕ
present novel legal issues that many current state laws are ill-equipped to
handle. For example, a South
Carolina school superintendent used an on-line bulletin board that could only
be accessed by board members to communicate with them to the exclusion of the
public. The board argued the
posted information was sensitive and therefore not subject to public
disclosure, while open records proponents contended the information was being
exchanged in this manner to avoid public detection. With outdated sunshine laws on the books in many states,
deciding cases like these is difficult. Experts suggest if school boards use
on-line bulletin boards and district web sites to receive comments that they
make sure to archive the comments and make them part of the public record. Schools should also look to the state
Attorney General for guidance in determining how the Internet fits into the
stateÕs sunshine laws.
Read
the article. Source: eSchoolNews.com, Oct. 1, 2000.
As the amount of information created
electronically increases, it becomes increasingly necessary to determine how
best to capture and archive this information. School administrators, librarians, and technology experts
across the country and even the world are wrestling with these difficult issues
on a regular basis. To help
provide some clarity to the situation, technology giant Sun Microsystems has
formed the Sun Preservation and Archiving Special Interest Group (PASIG). The goal of PASIG is to assemble world
leaders in government, education, and library services periodically to inform
best practices in the areas of digital archiving.
Read
the article. Source: eSchoolNews.com, Oct. 23, 2007.
Ramsey
v. Harman,
No. COA07-1536 (N.C. App. June 17, 2008).
An
on-line war of words between parents conducted over various blogs and personal
websites resulted in the issuance of a civil no-contact order and an
accompanying order to cease "cyber-stalking." The underlying facts of this case
suggest a long, deeply rooted disdain for one family harbored by another
woman. The alleged cyber-stalker
in this case exhibited her disdain by posting a series of messages on-line
suggesting that the plaintiffs were bullies and that they were the reason other
kids did not want to go to school.
Additionally, the defendant's website contained a voice recording of the
late mother and grandmother of the plaintiffs; referred to the older plaintiff
as a 'crow,' 'idiot,' and 'wack'; and called her "one of the biggest
bullies in this county."
The
North Carolina Court of Appeals, though, disagreed with a trial court that had
determined the defendant's on-line activities amounted to stalking as defined
in North Carolina statute. The
Appeals court held that while defendant had harassed the plaintiffs, she had
not done so with the requisite intent to have "stalked" her. North Carolina's stalking statue (G.S.
4.277.3(c)) requires repeated harassment with intent to: a) place the person in
reasonable fear for his safety or the safety of his family, or b) to cause the
person to suffer substantial emotional distress by placing him in fear of
death, injury, or continued harassment.
The Appeals court failed to find any evidence indicating that either plaintiff
had actually suffered any emotional distress. Without this factor, the trial court was incorrect in
finding that defendant had stalked the plaintiffs. In vacating the decision, the court stated, "the
statute does not allow parties to implicate and interject our courts into
juvenile hurls of gossip and innuendo between feuding parties where no evidence
of any statutory ground is shown to justify entry of a no-contact order."
Lex-IS
Points:
á
School
officials and teachers, as well as students and parents, should have some
familiarity with cybercrimes. For
example, North Carolina "Cyberstalking" statute (G.S. 14-193.6)
establishes a broad definition that includes intentional and repeated
"annoying" or "embarrassing" communications). Sample North Carolina provisions
can be viewed online
via the Lex-IS website.
á
Pursuing
or the threat of pursuing criminal and other civil remedies is one way to hold
in check cyber misconduct by students and others.
Quon
v. Arch Wireless,
No. 07-55282 (9th Cir. June 18, 2008).
School
cyberlaw is an emerging area of school law. When a federal appellate court issues a decision it is worth
noting, even though it is outside North Carolina jurisdiction. A recent Ninth Circuit Court of Appeals
decision makes it much more difficult for public employers within that
jurisdiction to access the text messages sent by their employees through a
private provider's network because employees may have a reasonable expectation
of privacy in the messages they send.
The
case involved members of the Ontario (Cal.) Police Department ("OPD")
using their department-issued wireless pagers for personal text messaging in
excess of their allotted usage plans.
The OPD had purchased pagers for their employees with text-messaging
capabilities and services (the "Plan") from a private provider. Text messages were sent and received
via the pagers and transmitted and stored in the provider's computer
network. City policy,
under which the OPD operated, had no specific text-message or pager policy. Its "Computer, Internet, and
E-mail Policy," however, was broadly worded to include a number of
computer and network-related equipment. That policy explicitly prohibited personal use of such
equipment and notified employees of the city's right to control, monitor, and
search any device covered by the policy.
It also stated that employees had "no expectation of privacy"
and no right to confidentiality in their use. The OCD supervisors communicated to employees that use of
the pager text messaging was considered "e-mail" under the city
policy.
The
plaintiffs, on several occasions, exceeded their pager use limits under the
Plan. They were informed that as
long as they paid the overage charges, the OCD would not inspect their pager
messages to determine if the overages were a result of personal use. Eventually the OCD conducted
its audit to examine the cause of the overages. The service provider, therefore, supplied a hardcopy to the
OCD of plaintiffs' text messages.
Those records indicated that the plaintiffs used their pagers for
extensive personal use, including the sending and receiving of sexually
explicit content.
The
plaintiffs sued the OCD, the city, several city officials, and the service
provider, claiming that the city
violated their Fourth Amendment protections against unreasonable searches and
that the service provider violated the federal Stored Communications Act of
1986 – a part of the Electronic Communications Privacy Act – by
disclosing plaintiffs' pager use records to the city without the plaintiffs'
consent.
Regarding
the Stored Communications Act claims,
the court ruled that the service provider violated the law by not
obtaining consent from the plaintiffs, despite the fact that the city was the
account subscriber.
Regarding
the Fourth Amendment claim, the court noted
The extent to which the Fourth Amendment
provides protection for the contents of electronic communications in the
Internet age is an open question. The recently minted standard of electronic
communication via e-mails, text messages, and other means is a new frontier in
Fourth Amendment jurisprudence that has been little explored.
The
court declared that users have a reasonable expectation of privacy in their
records stored on a private service provider's network. Despite the city's broadly
worded e-mail policy, the court noted that the city had never previously
monitored or audited pager text messages.
In addition, the plaintiffs had always been allowed to pay their overage
charges in lieu of having their messages audited. These practices instilled an expectation that such messages
were private, despite formal policies and pronouncements to the contrary. Furthermore, ruled the court, the scope
of the city's search of records was also unreasonable since there were other
simpler ways it could address the problem of Plan overages.
Finally,
the court did rule that city officials were immune from liability in their
individual capacities. Even though
the plaintiffs' rights were violated, those rights were not so "clearly
established" that city officials could reasonably know that.
Lex-IS
Points:
á
Remember,
this case is not binding on North Carolina schools. Whether its employee-friendly and liberal constitutional
interpretation would be upheld in this jurisdiction is highly questionable.
á
Such
cases are very fact specific; even the court notes that its ruling can not be
broadly applied.
á
The
court's ruling raises a number of practical concerns for government
employers. For example, use of
private electronic service providers may broaden an employee's Fourth Amendment
rights. Also, despite broad and
explicit policies and pronouncements declaring no employee expectation of
privacy in electronic communications, failure to periodically notify and
implement monitoring efforts may increasingly create an "expectation of
privacy."
á
Unfortunately,
the court's ruling could lead employers, at least in the 9th
Circuit, to start monitoring and reviewing employee communications when there
is no apparent need to do so simply to address the court's point regarding an
employer's right to monitor and search: i.e., "if you don't use it, you lose it." In other words, an employer's
failure to do what it has the right to do – i.e., search employee communications – could lull employees into expecting
privacy and therefore produce a Fourth Amendment right.
á
School
attorneys should review school system policies and practices for consistency.
According
to a recent news report, Internet companies who offer popular social websites
are becoming more vigilant in removing offensive content. While there are some universally
accepted reasons for this (e.g., decrease spam, security threats, child
pornography), many other
censorship practices require a difficult balancing of competing
interests. Some groups favoring
free speech decry such practices, others favoring Internet safety, applaud the
efforts.
Parties
opposed to sensitive content on such popular websites as Facebook and MySpace
sometimes complain to service providers and succeed in getting the content
removed. This troubles many free
speech proponents who argue that removal from MySpace or Facebook is
functionally equivalent to removal from the Internet because of the extreme
popularity of these sites and the lack of viable competitors. MySpace, though, says it does not
engage in censorship and only removes content when it receives user complaints
regarding spam or other abuses.
Source: Raleigh News & Observer,
July 7, 2008
Cyberlaw – Systems – Record
Retention: New law requires
additional attention to archiving email.
A
December 2006 change in the Federal Rules of Civil Procedure required school
district email and instant messages to be included in the discovery process
pursuant to federal lawsuits.
Despite this change, recent studies suggest that as many as 90 percent
of schools have not implemented
appropriate digital archiving technologies to satisfy the discovery requests
that would accompany a lawsuit in which the school was involved.
The
Consortium for School Networking has released a paper that it hopes will
enlighten school officials on what they should know, how they should approach
digital archiving, and what other schools are doing to address the archiving
requirements.
Source: eSchoolNews.com, July 2, 2008
Source: eSchoolNews.com, June 27, 2008
In an attempt to
capitalize on the immense popularity of text messaging among American youths,
police departments in over 100 communities have instituted anonymous text
messaging systems. Based on the
Crime Stoppers telephone model, the hope is that more American teenagers and
young adults, for whom text messaging is a primary form of communication, will
report criminal activity via text messaging than are currently doing so via
phone.
Already, police
departments have reported getting excellent information regarding drug deals,
including specific details regarding time, place, and even license plate
numbers.
Source: eCampusNews.com, July 15, 2008
About 6,000 Graduate
Management Admission Test (GMAT) scores are in question following a recent
court ruling against an online website that contained previews of current
questions on the standardized admission test for graduate management programs. GMAT officials are currently in the
process of identifying the individuals who accessed the website and will cancel
the scores of those who did. It
remains uncertain how graduate programs will handle suspected cheaters,
especially those already enrolled in classes.
Source: eCampusNews.com, July 15, 2008
While schools have
markedly increased their use of technology to provide new learning tools to
students and to protect student data, a recent survey by the Software and
Information Industry Association (SIAA) indicates that schools are still not
using digital assessments to their fullest potential. The SIAA, whose Vision for K-20 Education provides a
"framework for using technology to transform education," advocates
the use of computer-based adaptive testing as a way to more accurately pinpoint
the strengths and weaknesses of individual students.
Source: eCampusNews.com, July 15, 2008
Opportunistic cyber
criminals are constantly looking for large computer networks that are
relatively free from security to launch their attacks, and education
institutions are often prime targets.
Seeking to make it easy for students and faculty to access on-line
educational resources, schools and universities often provide little
protection, if any, to their computer systems. Consequently, hackers are able to essentially take over the
system, or parts of it, and turn it into a "botnet" to launch
anonymous spam or virus attacks that can cripple an entire computer system if
undetected. Technology departments are encouraged to constantly monitor school
system firewalls and spyware and to ensure updates and security patches are
installed in a timely manner.
Source: eCampusNews.com, July 15, 2008
Educators at the
National Educational Computing Conference earlier this month lamented the fact that
despite increases in the number of homes with online capabilities, there are
still a number of students who are disadvantaged as a result of their inability
to access digital learning tools and resources. As society becomes more technologically advanced, those who
do not have ready access to online resources find it increasingly difficult to
compete in the marketplace.
Six essential conditions
for digital inclusion were mentioned:
1.
Basic
literacy skills
2.
Access
to information and communications technology devices, software, and
connectivity
3.
Access
to culturally relevant content in the student's language
4.
Ability
to create, share, and exchange digital content
5.
Access
to educators who know how to use digital tools and resources in pedagogically
sound ways, and
6.
Access
to effective leadership in policy and planning
Source: eCampusNews.com, July 15, 2008
Cyberlaw–Free
Speech: Fourth Circuit upholds school system's right to exclude opposing policy
viewpoints on its website and e-mail.
Page v. Lexington County
Sch. Dist. One, No. 07-1697 (4th Cir. Jun. 23, 2008).
[This case was
recently reported in the Lex-IS Cyber e-Law Special Update.]
School Cyberlaw cases
are growing in number as technology use expands. Still, few cases have been decided by federal appellate
courts and fewer still by the Fourth Circuit Court of Appeals, which has
jurisdiction over North and South Carolina schools. When they are, they are worth noting, especially when
they address a significant area of law like the First Amendment as applied to
school systems' use and control of their web pages and e-mail.
On June 23, the Fourth
Circuit upheld the right of a South Carolina school system to deny a citizen
"equal access" to the System's webpage, e-mail, and other
communication mechanisms in order to prevent that person from using those
forums for supporting proposed voucher legislation. The school board for the Lexington County School
District One (the "District") decided to oppose proposed state
voucher legislation and to communicate its opposition through its webpage,
e-mail, PTA newsletter and other channels.
The plaintiff supported
the voucher legislation and requested that the District grant him "equal
access" to its communications channels to advocate his pro-legislation
views. The District refused
and the plaintiff sued, claiming the denial was unconstitutional
"viewpoint discrimination" under the First Amendment Free Speech
Clause.
The federal district
court granted summary judgment for the District (i.e., decided the case without
a trial). The Fourth Circuit
affirmed that decision in all respects.
The court first addressed whether the System's policy advocacy against
the voucher legislation was "government speech" and therefore exempt
from First Amendment scrutiny.
Reviewing the law of government speech, the court noted that the
determination depends on the extent of the government's ownership and control
of the message. Key factors
include the speech's purpose, the extent of the government's "editorial
control," the "identity" of the person making the speech, and
the person having "ultimate control" over the content.
Applying each of those
factors, the court determined that the System's advocacy was, indeed,
"government speech."
The Board decided to oppose the legislation and to communicate that
opposition to the school and public community. At all points in time it controlled what content was
conveyed. Even though some private
party information was referenced or distributed, the decision to do so remained
in the sole control of school officials.
The plaintiff argued
that by linking to third-party information on the System's website, the
District had created a "limited public forum," thus entitling members
of the public, like the plaintiff, to have their views posted as well. The court rejected this argument. Its reasoning is particularly
significant and instructive for school systems regarding website content and
control. Key factors that kept the
District's website "closed" included: (1) the fact that third-party websites were linked
only based on their support of the District's position; (2) the District retained complete
control of its own website, including the ability to delete any link at any
time; (3) the District never adopted the third-party information as its own and
it also included disclaimers regarding the content of third-party websites; and
(4) the District never wavered in its opposition to the voucher legislation and
its message was therefore consistent.
In sum, the System "sufficiently controlled [its website] so that
its speech remained government speech and it did not create a limited public
forum by including links to other websites." The court ruled similarly regarding the System's e-mail
communications.
Regarding the PTA
newsletters, the court recognized that these may have created a limited public
forum but that the plaintiff was not a member of the class of individuals
entitled to provide content and that the District's regulations for the
newsletter were reasonable.
Finally, the court
upheld the District's right to advocate its policy positions. Rejecting the plaintiff's
argument against this, the court noted that citizens had the right to vote
school board members out of office if they did not like the board's
advocacy. The court recognized the
board's right to "defend public education in the face of pending
legislation that it views as potentially threatening of public education."
Lex-IS Points:
There is a fine line
between when a school system website or other forum is "closed" and
when it is a "limited public forum" subject to public participation;
school officials have often crossed the line without knowing it and therefore
subjected their actions to greater First Amendment scrutiny.
The factors applied by
the Fourth Circuit in the Page case provide some guidance as to how a school
system can retain control over the messages it communicates.
Before making decisions
about expanding or changing technology use, be sure to consider the First
Amendment and other legal ramifications and get legal advice if there is
question.
School system policies
should be reviewed periodically to determine if they comport with current
technological and legal trends.
Cyberlaw:
Pornography charges result in North Carolina Central University firings.
Three state employees at
NCCU were fired for allegedly using university computers to download
pornography and other improper material from the Internet according to the
North Carolina State Auditor.
Source: Raleigh News & Observer,
June 18, 2008.
Cyberlaw–
Student Safety: U.S. Supreme Court
upholds child porn law provision.
U.S. v. Williams, 06-694
(U.S. May 19, 2008)
The federal PROTECT ACT
prohibits "knowingly advertis[ing], promot[ing], present[ing],
distribut[ing], or solicit[ing] any material or purported material in a manner that
reflects the belief, or that is intended to cause another to believe, that the
material or purported material is illegal child pornography."
In a lawsuit challenging
that provision as unconstitutionally overbroad and vague, the Court upheld the
provision by a 7-2 vote in an opinion authored by Justice Scalia. In doing so, the Court upheld the
applicable criminal penalties for promoting child pornography. It rejected concerns that the law would
overbroadly prohibit seemingly acceptable communications, such as widely-viewed
movies, classic literature, or even a grandparent's e-mails describing her
grandchildren.
Cyberlaw–
Employee Speech: Fourth Circuit
rules that employee's work e-mail forwarding civil rights materials is not
protected speech.
Bowers v. Scurry(4th
Cir. May 2, 2008) [unpublished]
A University of Virginia
human resource employee used her university e-mail to forward NAACP material in
opposition to a school pay restructuring plan. The university fired the employee contending that the e-mail
implied that it was an official HR communication, causing confusion to
employees. The university had a
policy that limited the sending of personal e-mails. In the employee's resulting First Amendment
lawsuit, the Court upheld the university action. Although the employee had a legitimate interest in
communicating on a matter of public concern, the university's interest in
maintaining an efficient workplace prevailed.
Cyberlaw
–Operations – Email Retention: N.C. e-mail
panel makes recommendations.
A panel created to
examine the state's e-mail retention policies has issued its
recommendations. The
recommendations still allow state employees to determine what records to keep
as having "enduring administrative value" and which to delete. The Chairman of the panel noted that
you simply have to "trust" employees at some level in exercising
their discretion. Such a practice
has been challenged in a lawsuit by a group of newspapers and media
organizations. Additional
recommendations include:
á
Requiring
all state employees who handle public records to complete a one-hour online
training tutorial.
á
Consolidate
the eighteen different archiving systems into one statewide archiving database
to allow for easier searching of stored records.
á
Preserving
back-up files for five years, rather than 30 days.
Source: Raleigh
News & Observer, May 16, 2008
Cyber News –
Student Safety: Wake County Schools aim to shelter students from cybercrime.
A recent news report
states "Fears about sexual predators and online stalkers could force the
Wake County school system to cut the amount of information about students that
is posted on the Internet.
A new policy that the Wake
school board is scheduled to adopt Tuesday would impose guidelines that call
for student anonymity online, such as using pseudonyms and not listing names
with photographs.
It's part of a trend,
being urged by the state and the N.C. School Boards Association, to make it
harder for criminals to get personal information about children...."
Source: Raleigh News &
Observer, June 2, 2008
Cyberlaw–
Student Safety: N.C. teen cell
phone law largely unheeded.
A recent study indicates
students often ignore North Carolina's recent ban on teen driver cell phone
use. The news report provides the
following summary of the law.
Drivers under 18 years
old are barred by North Carolina law from using mobile telephones while
driving. The ban took effect in December 2006. It also covers other wireless
activity including text messaging, e-mail, music and games.
Exceptions to the ban
allow teen drivers to use their phones to talk with:
á
Parents,
spouses and legal guardians.
á
Police,
medical and other emergency personnel, regarding emergency situations.
The violation is an
infraction and carries a $25 fine. Driver's insurance points are not affected.
But a violation can delay a driver's ability to move from provisional to full
driving privileges under North Carolina's graduated license program. A similar law, which became effective
in December 2007, bars school bus drivers from talking on cell phones while
their buses are rolling.
Source: Raleigh News &
Observer, June 13, 2008
Cyberlaw –
Student Speech: 2nd Circuit
upholds discipline for vulgar blog comments about school officials.
Doninger v. Niehoff,
No.07-3885-cv (2nd Cir. May 29, 2008)
The Second Circuit Court
of Appeals upheld a ruling denying a student a preliminary injunction and,
consequently, refused to require her school to allow her to run for class office. School officials considered the
student's vulgar personal blog comments including statements that school
administrators were "douchebags" for refusing to hold a band event at
the desired time. Under First Amendment jurisprudence, the Court concurred that
the student's conduct could create a "foreseeable risk of substantial
disruption."
Source: Westlaw Watch,
June 7, 2008.
Cyberlaw–
Employee Privacy: Bus driver's privacy rights not violated by installation of
video camera on bus.
Goodwin v. Moyer, 2006
WL 839342 (M.D.Pa. 2008)
A federal district court
ruled that a video camera installed on a school bus, unbeknownst to the bus
driver, did not violate the driver's Fourth Amendment privacy rights. The driver had no expectation of
privacy: he was in a public area where he could be viewed through the windows,
he was not engaged in any private acts, and the system had a compelling
interest to protect students and the driver.
Cyberlaw –
Employee Privacy: Teacher's privacy rights not violated by proposed audio
monitoring of classroom.
Plock v. Bd. ofEduc. of
Freeport Sch. Dist. No. 145, 07-C-50060, (N.D. Ill. Dec. 18, 2007).
A federal district court
ruled that a school district's plan to audio record certain classrooms did not
violate a special education teacher's Fourth Amendment claim because the
teacher had no expectation of privacy in her classroom. Given the information regularly
disseminated by students, plus the school's interest in classroom activities, a
teacher's expectation of privacy would be unreasonable.
Cyberlaw
–Student Speech: Court
rejects conviction of student who posts profane statements about principal on
social networking site.
A.B. v. State, No. 67S01-0709-JV-373 (Ind. May 13,
2008)
The state of Indiana
prosecuted a student for felonious harassment for posting profane statements
about her principal after her friend was disciplined. The statements in question were posted on the friend's "private
profile" on a social networking internet site. The state court ruled that
the state failed to prove, as required under state statute, that the student
intended to "harass, annoy, or alarm" her former middle school
principal. According to the court,
the student had no subjective expectation that the principal would discover the
comments.
Lex-IS Point:
North Carolina has
comparable criminal statutes; it is important to remember from this case that
"intent" is a critical component of a successful felony charge.
Cyberlaw–
Copyright: Company not liable to students for contract and copyright damages
related to plagiarism software.
A.V. v.
iParadigms, Ltd. Liability Co., No. 07-0293 (E.D.Va., Mar. 11, 2008)
The defendant's software
program, Turintin, enables schools to find instances of plagiarism by
evaluating the originality of student writing projects. The Turintin software
is used by over 7,000 schools and website receives 100,000 daily student
submissions. The program then
compares the written submissions to materials contained in the Turintin
database and in other databases of journal articles and writings and produces
an "originality" report for the teacher. The teacher can then
determine if there are plagiarism concerns. Students who submit their writings
must agree to create a profile and "accept" the user agreement (the
"clickwrap agreement"), which includes a limitation of liability
clause.
Four students from
Virginia and Arizona school systems challenged the defendant's archiving of the
students' written materials. The students were required to submit their written
projects via the company website or receive a zero on the assignment if they
refused. When the students
submitted their written work, their documents contained a disclaimer stating
that they did not consent to having their works archived. The company, nevertheless, continued to
archive their works as part of their database.
The state court ruled
that, under Virginia law, the clickwrap agreement was valid and enforceable,
including the contract's "indemnity" clause the protected the
defendant from liability. The
students' attempt to modify the contract with a disclaimer was not enforceable
because the contract prohibited modification: the original agreement was, in
essence, a "take-it-or-leave-it" offer.
The court also rejected
the plaintiffs' "duress" claims: that they were coerced into signing
the agreement by the school system to avoid penalty. To the extent there was any duress, said the court,
such a claim must be asserted against the school system, not the software
company.
Furthermore, the court
ruled that defendant's use of plaintiffs' archived works did not infringe
federal copyright protections because such use fell under the "fair
use" exception of the law.
The court determined that the use was highly beneficial to the school
and "transformative" (i.e., used for a different purpose): the use of
the materials was for comparative (not expressive) purposes, was not a
disincentive to student creativity, and did not undercut any anticipated
student revenue.
Cyberlaw– Student
Privacy: School system cell phone ban did not violate parents' due process
rights.
Price v.
New York City Bd. of Educ., 2008 NY Slip Op 03512 (N.Y.A.D. 1 Dept., Apr.
22, 2008
The New York City
Education Chancellor issued a ban on student cell phones, which led to the
confiscation of thousands of such phones. Parents sued, alleging federal and
state due process violations. The
state supreme court ruled that the ban was a rational and legitimate exercise
of the schools' power to maintain order and discipline in the schools.
Harper ex rel. Harper v.
Poway Unified School Dist. (S.D.Cal.)
A federal district court
in California has ruled that a school webpage that included links to religious
websites opposing homosexuality did not violate the First Amendment
Establishment Clause. The plaintiffs failed to prove that the links did not
fulfill a secular educational purpose or effect or that the links excessively
entangled the school with religion.
The court noted that a student had previously been disciplined for
wearing an anti-homosexuality t-shirt, showing that the district was not
pursuing a religious agenda.
Source: Westlaw Watch.
Cyberlaw–
Operations: Wisconsin law to keep cyber schools running.
Wisconsin has passed a
law allowing online schools to qualify this fall for state aid, but limits
their enrollment and subjects them to program audits.
Source: Milwaukee
Journal-Sentinel, April 7, 2008.
CyberNews
– Student Safety: The naked truth about teen photo distribution.
A recent article
describes the alarming trend of students using cell phones and other electronic
devices to distribute nude and sexually explicit pictures of themselves or
others. Because of the ease and
anonymity of electronic communications, these communications can be distributed
widely and, in some cases, lead to great physical and emotional harm.
Teens who send nude
pictures of themselves or receive nude pictures from other teens may not be
aware of the legal risks. As
indicated in the article and according to the U.S. Department of Justice
(www.usdoj.gov):
á
Any
image of a child -- defined as anyone under 18 -- engaged in sexually explicit
conduct is illegal contraband.
á
The
legal definition of sexually explicit conduct does not require that an image
depict a child engaging in sexual activity. A picture of a naked child may
constitute illegal child pornography if it is sufficiently sexually suggestive.
Source: Raleigh
News & Observer, June 5, 2008
CyberSystems–
E-mail: Spam celebrates 30 years of clogging e-mail inboxes.
A recent news report
reminds readers of the birth of e-mail "spam" 30 years ago when
computer salesman Gary Thuerk, on May 3, 1978, distributed a message on
Arapanet, the precursor to the internet, that read: "We invite you to come see the [Computer System] 2020
and hear about the DECSYSTEM-20 family at the two product presentations we will
be giving in California this month."
The message produced a
backlash from academic and government users of the system. The article cites Microsoft
founder Bill Gates' 2004 prediction that spam would soon be eliminated. This year also marks the
10-year anniversary of the first Viagra spam e-mail; one such early message
offered a bottle of 30 pills for $500.00. Real spam, not the virtual kind, celebrated its 70thbirthday
last year.
Raleigh
News & Observer, May 3, 2008 (from the Washington Post).
Cyberlaw–
Student Safety: U.S. Supreme Court
upholds child porn law provision.
U.S. v. Williams, 06-694
(U.S. May 19, 2008)
The federal PROTECT ACT
prohibits "knowingly advertis[ing], promot[ing], present[ing],
distribut[ing], or solicit[ing] any material or purported material in a manner
that reflects the belief, or that is intended to cause another to believe, that
the material or purported material is illegal child pornography."
In a lawsuit challenging
that provision as unconstitutionally overbroad and vague, the Court upheld the
provision by a 7-2 vote in an opinion authored by Justice Scalia. In doing so, the Court upheld the applicable
criminal penalties for promoting child pornography. It rejected concerns that the law would overbroadly prohibit
seemingly acceptable communications, such as widely-viewed movies, classic
literature, or even a grandparent's e-mails describing her grandchildren.
Cyberlaw–
Employee Speech: Fourth Circuit
rules that employee's work e-mail forwarding civil rights materials is not
protected speech.
Bowers v. Scurry(4th
Cir. May 2, 2008) [unpublished]
A University of Virginia
human resource employee used her university e-mail to forward NAACP material in
opposition to a school pay restructuring plan. The university fired the employee contending that the e-mail
implied that it was an official HR communication, causing confusion to
employees. The university had a
policy that limited the sending of personal e-mails. In the employee's resulting First Amendment
lawsuit, the Court upheld the university action. Although the employee had a legitimate interest in
communicating on a matter of public concern, the university's interest in
maintaining an efficient workplace prevailed.
Cyberlaw
–Operations – Email Retention: N.C. e-mail panel makes
recommendations.
A panel created to
examine the state's e-mail retention policies has issued its
recommendations. The
recommendations still allow state employees to determine what records to keep
as having "enduring administrative value" and which to delete. The Chairman of the panel noted that
you simply have to "trust" employees at some level in exercising
their discretion. Such a practice
has been challenged in a lawsuit by a group of newspapers and media
organizations. Additional
recommendations include:
á
Requiring
all state employees who handle public records to complete a one-hour online
training tutorial.
á
Consolidate
the eighteen different archiving systems into one statewide archiving database
to allow for easier searching of stored records.
á
Preserving
back-up files for five years, rather than 30 days.
Source: Raleigh
News & Observer, May 16, 2008
Cyber News –
Student Safety: Wake County Schools aim to shelter students from cybercrime.
A recent news report
states "Fears about sexual predators and online stalkers could force the
Wake County school system to cut the amount of information about students that
is posted on the Internet.
A new policy that the
Wake school board is scheduled to adopt Tuesday would impose guidelines that
call for student anonymity online, such as using pseudonyms and not listing
names with photographs.
It's part of a trend,
being urged by the state and the N.C. School Boards Association, to make it
harder for criminals to get personal information about children...."
Source: Raleigh News &
Observer, June 2, 2008
Cyberlaw–
Student Safety: N.C. teen cell
phone law largely unheeded.
A recent study indicates
students often ignore North Carolina's recent ban on teen driver cell phone
use. The news report provides the
following summary of the law.
Drivers under 18 years
old are barred by North Carolina law from using mobile telephones while
driving. The ban took effect in December 2006. It also covers other wireless
activity including text messaging, e-mail, music and games.
Exceptions to the ban
allow teen drivers to use their phones to talk with:
á
Parents,
spouses and legal guardians.
á
Police,
medical and other emergency personnel, regarding emergency situations.
The violation is an
infraction and carries a $25 fine. Driver's insurance points are not affected.
But a violation can delay a driver's ability to move from provisional to full
driving privileges under North Carolina's graduated license program. A similar law, which became effective
in December 2007, bars school bus drivers from talking on cell phones while
their buses are rolling.
Source: Raleigh News &
Observer, June 13, 2008
Cyberlaw –
Student Speech: 2nd Circuit
upholds discipline for vulgar blog comments about school officials.
Doninger v. Niehoff,
No.07-3885-cv (2nd Cir. May 29, 2008)
The Second Circuit Court
of Appeals upheld a ruling denying a student a preliminary injunction and,
consequently, refused to require her school to allow her to run for class
office. School officials
considered the student's vulgar personal blog comments including statements
that school administrators were "douchebags" for refusing to hold a
band event at the desired time. Under First Amendment jurisprudence, the Court
concurred that the student's conduct could create a "foreseeable risk of
substantial disruption."
Source: Westlaw Watch,
June 7, 2008.
Cyberlaw–
Employee Privacy: Bus driver's privacy rights not violated by installation of
video camera on bus.
Goodwin v. Moyer, 2006
WL 839342 (M.D.Pa. 2008)
A federal district court
ruled that a video camera installed on a school bus, unbeknownst to the bus
driver, did not violate the driver's Fourth Amendment privacy rights. The driver had no expectation of
privacy: he was in a public area where he could be viewed through the windows,
he was not engaged in any private acts, and the system had a compelling
interest to protect students and the driver.
Cyberlaw –
Employee Privacy: Teacher's privacy rights not violated by proposed audio
monitoring of classroom.
Plock v. Bd. ofEduc. of
Freeport Sch. Dist. No. 145, 07-C-50060, (N.D. Ill. Dec. 18, 2007).
A federal district court
ruled that a school district's plan to audio record certain classrooms did not
violate a special education teacher's Fourth Amendment claim because the
teacher had no expectation of privacy in her classroom. Given the information regularly
disseminated by students, plus the school's interest in classroom activities, a
teacher's expectation of privacy would be unreasonable.
Cyberlaw
–Student Speech: Court
rejects conviction of student who posts profane statements about principal on
social networking site.
A.B. v. State, No. 67S01-0709-JV-373 (Ind. May 13,
2008)
The state of Indiana
prosecuted a student for felonious harassment for posting profane statements
about her principal after her friend was disciplined. The statements in question were posted on the friend's
"private profile" on a social networking internet site. The state
court ruled that the state failed to prove, as required under state statute,
that the student intended to "harass, annoy, or alarm" her former
middle school principal. According
to the court, the student had no subjective expectation that the principal
would discover the comments.
Lex-IS Point:
á
North
Carolina has comparable criminal statutes; it is important to remember from this
case that "intent" is a critical component of a successful felony
charge.
Cyberlaw–
Copyright: Company not liable to students for contract and copyright damages
related to plagiarism software.
A.V. v.
iParadigms, Ltd. Liability Co., No. 07-0293 (E.D.Va., Mar. 11, 2008)
The defendant's software
program, Turintin, enables schools to find instances of plagiarism by
evaluating the originality of student writing projects. The Turintin software
is used by over 7,000 schools and website receives 100,000 daily student
submissions. The program then
compares the written submissions to materials contained in the Turintin
database and in other databases of journal articles and writings and produces
an "originality" report for the teacher. The teacher can then
determine if there are plagiarism concerns. Students who submit their writings
must agree to create a profile and "accept" the user agreement (the
"clickwrap agreement"), which includes a limitation of liability
clause.
Four students from
Virginia and Arizona school systems challenged the defendant's archiving of the
students' written materials. The students were required to submit their written
projects via the company website or receive a zero on the assignment if they
refused. When the students
submitted their written work, their documents contained a disclaimer stating
that they did not consent to having their works archived. The company, nevertheless, continued to
archive their works as part of their database.
The state court ruled
that, under Virginia law, the clickwrap agreement was valid and enforceable,
including the contract's "indemnity" clause the protected the
defendant from liability. The
students' attempt to modify the contract with a disclaimer was not enforceable
because the contract prohibited modification: the original agreement was, in
essence, a "take-it-or-leave-it" offer.
The court also rejected
the plaintiffs' "duress" claims: that they were coerced into signing
the agreement by the school system to avoid penalty. To the extent there was any duress, said the court,
such a claim must be asserted against the school system, not the software company.
Furthermore, the court
ruled that defendant's use of plaintiffs' archived works did not infringe
federal copyright protections because such use fell under the "fair
use" exception of the law.
The court determined that the use was highly beneficial to the school
and "transformative" (i.e., used for a different purpose): the use of
the materials was for comparative (not expressive) purposes, was not a
disincentive to student creativity, and did not undercut any anticipated
student revenue.
Cyberlaw–
Student Privacy: School system cell phone ban did not violate parents' due
process rights.
Price v.
New York City Bd. of Educ., 2008 NY Slip Op 03512 (N.Y.A.D. 1 Dept., Apr.
22, 2008
The New York City
Education Chancellor issued a ban on student cell phones, which led to the
confiscation of thousands of such phones. Parents sued, alleging federal and
state due process violations. The
state supreme court ruled that the ban was a rational and legitimate exercise
of the schools' power to maintain order and discipline in the schools.
Cyberlaw–
Religious Establishment: School website containing link to anti-homosexuality
websites was permissible.
Harper ex rel. Harper v.
Poway Unified School Dist. (S.D.Cal.)
A federal district court
in California has ruled that a school webpage that included links to religious
websites opposing homosexuality did not violate the First Amendment
Establishment Clause. The plaintiffs failed to prove that the links did not
fulfill a secular educational purpose or effect or that the links excessively
entangled the school with religion.
The court noted that a student had previously been disciplined for
wearing an anti-homosexuality t-shirt, showing that the district was not
pursuing a religious agenda.
Source: Westlaw Watch.
Cyberlaw–
Operations: Wisconsin law to keep cyber schools running.
Wisconsin has passed a
law allowing online schools to qualify this fall for state aid, but limits their
enrollment and subjects them to program audits.
Source: Milwaukee
Journal-Sentinel, April 7, 2008.
CyberNews –
Student Safety: The naked truth about teen photo distribution.
A recent article
describes the alarming trend of students using cell phones and other electronic
devices to distribute nude and sexually explicit pictures of themselves or
others. Because of the ease and
anonymity of electronic communications, these communications can be distributed
widely and, in some cases, lead to great physical and emotional harm.
Teens who send nude
pictures of themselves or receive nude pictures from other teens may not be
aware of the legal risks. As
indicated in the article and according to the U.S. Department of Justice
(www.usdoj.gov):
á
Any
image of a child -- defined as anyone under 18 -- engaged in sexually explicit
conduct is illegal contraband.
á
The
legal definition of sexually explicit conduct does not require that an image
depict a child engaging in sexual activity. A picture of a naked child may
constitute illegal child pornography if it is sufficiently sexually suggestive.
Source: Raleigh
News & Observer, June 5, 2008
CyberSystems–
E-mail: Spam celebrates 30 years of clogging e-mail inboxes.
A recent news report
reminds readers of the birth of e-mail "spam" 30 years ago when
computer salesman Gary Thuerk, on May 3, 1978, distributed a message on
Arapanet, the precursor to the internet, that read: "We invite you to come see the [Computer System] 2020
and hear about the DECSYSTEM-20 family at the two product presentations we will
be giving in California this month."
The message produced a
backlash from academic and government users of the system. The article cites Microsoft
founder Bill Gates' 2004 prediction that spam would soon be eliminated. This year also marks the
10-year anniversary of the first Viagra spam e-mail; one such early message
offered a bottle of 30 pills for $500.00. Real spam, not the virtual kind, celebrated its 70thbirthday
last year.
Raleigh
News & Observer, May 3, 2008 (from the Washington Post).
Cyberlaw–
Student Safety: U.S. Supreme Court
upholds child porn law provision.
U.S. v. Williams, 06-694
(U.S. May 19, 2008)
The federal PROTECT ACT
prohibits "knowingly advertis[ing], promot[ing], present[ing],
distribut[ing], or solicit[ing] any material or purported material in a manner
that reflects the belief, or that is intended to cause another to believe, that
the material or purported material is illegal child pornography."
In a lawsuit challenging
that provision as unconstitutionally overbroad and vague, the Court upheld the
provision by a 7-2 vote in an opinion authored by Justice Scalia. In doing so, the Court upheld the
applicable criminal penalties for promoting child pornography. It rejected concerns that the law would
overbroadly prohibit seemingly acceptable communications, such as widely-viewed
movies, classic literature, or even a grandparent's e-mails describing her
grandchildren.
Cyberlaw–
Employee Speech: Fourth Circuit
rules that employee's work e-mail forwarding civil rights materials is not
protected speech.
Bowers v. Scurry(4th
Cir. May 2, 2008) [unpublished]
A University of Virginia
human resource employee used her university e-mail to forward NAACP material in
opposition to a school pay restructuring plan. The university fired the employee contending that the e-mail
implied that it was an official HR communication, causing confusion to
employees. The university had a
policy that limited the sending of personal e-mails. In the employee's resulting First Amendment
lawsuit, the Court upheld the university action. Although the employee had a legitimate interest in
communicating on a matter of public concern, the university's interest in
maintaining an efficient workplace prevailed.
Cyberlaw
–Operations – Email Retention: N.C. e-mail panel makes recommendations.
A panel created to
examine the state's e-mail retention policies has issued its
recommendations. The
recommendations still allow state employees to determine what records to keep
as having "enduring administrative value" and which to delete. The Chairman of the panel noted that
you simply have to "trust" employees at some level in exercising
their discretion. Such a practice
has been challenged in a lawsuit by a group of newspapers and media
organizations. Additional
recommendations include:
á
Requiring
all state employees who handle public records to complete a one-hour online
training tutorial.
á
Consolidate
the eighteen different archiving systems into one statewide archiving database
to allow for easier searching of stored records.
á
Preserving
back-up files for five years, rather than 30 days.
Source: Raleigh
News & Observer, May 16, 2008
Cyber News –
Student Safety: Wake County Schools aim to shelter students from cybercrime.
A recent news report
states "Fears about sexual predators and online stalkers could force the
Wake County school system to cut the amount of information about students that
is posted on the Internet.
A new policy that the
Wake school board is scheduled to adopt Tuesday would impose guidelines that
call for student anonymity online, such as using pseudonyms and not listing
names with photographs.
It's part of a trend,
being urged by the state and the N.C. School Boards Association, to make it
harder for criminals to get personal information about children...."
Source: Raleigh News &
Observer, June 2, 2008
Cyberlaw–
Student Safety: N.C. teen cell
phone law largely unheeded.
A recent study indicates
students often ignore North Carolina's recent ban on teen driver cell phone
use. The news report provides the
following summary of the law.
Drivers under 18 years
old are barred by North Carolina law from using mobile telephones while
driving. The ban took effect in December 2006. It also covers other wireless
activity including text messaging, e-mail, music and games.
Exceptions to the ban
allow teen drivers to use their phones to talk with:
á
Parents,
spouses and legal guardians.
á
Police,
medical and other emergency personnel, regarding emergency situations.
The violation is an
infraction and carries a $25 fine. Driver's insurance points are not affected.
But a violation can delay a driver's ability to move from provisional to full
driving privileges under North Carolina's graduated license program. A similar law, which became effective
in December 2007, bars school bus drivers from talking on cell phones while
their buses are rolling.
Source: Raleigh News &
Observer, June 13, 2008
Cyberlaw –
Student Speech: 2nd Circuit upholds
discipline for vulgar blog comments about school officials.
Doninger v. Niehoff,
No.07-3885-cv (2nd Cir. May 29, 2008)
The Second Circuit Court
of Appeals upheld a ruling denying a student a preliminary injunction and,
consequently, refused to require her school to allow her to run for class
office. School officials
considered the student's vulgar personal blog comments including statements
that school administrators were "douchebags" for refusing to hold a
band event at the desired time. Under First Amendment jurisprudence, the Court
concurred that the student's conduct could create a "foreseeable risk of
substantial disruption."
Source: Westlaw Watch,
June 7, 2008.
Cyberlaw– Employee
Privacy: Bus driver's privacy rights not violated by installation of video
camera on bus.
Goodwin v. Moyer, 2006
WL 839342 (M.D.Pa. 2008)
A federal district court
ruled that a video camera installed on a school bus, unbeknownst to the bus
driver, did not violate the driver's Fourth Amendment privacy rights. The driver had no expectation of
privacy: he was in a public area where he could be viewed through the windows,
he was not engaged in any private acts, and the system had a compelling interest
to protect students and the driver.
Cyberlaw –
Employee Privacy: Teacher's privacy rights not violated by proposed audio
monitoring of classroom.
Plock v. Bd. ofEduc. of
Freeport Sch. Dist. No. 145, 07-C-50060, (N.D. Ill. Dec. 18, 2007).
A federal district court
ruled that a school district's plan to audio record certain classrooms did not
violate a special education teacher's Fourth Amendment claim because the
teacher had no expectation of privacy in her classroom. Given the information regularly
disseminated by students, plus the school's interest in classroom activities, a
teacher's expectation of privacy would be unreasonable.
Cyberlaw
–Student Speech: Court
rejects conviction of student who posts profane statements about principal on
social networking site.
A.B. v. State, No. 67S01-0709-JV-373 (Ind. May 13,
2008)
The state of Indiana
prosecuted a student for felonious harassment for posting profane statements
about her principal after her friend was disciplined. The statements in question were posted on the friend's
"private profile" on a social networking internet site. The state
court ruled that the state failed to prove, as required under state statute,
that the student intended to "harass, annoy, or alarm" her former
middle school principal. According
to the court, the student had no subjective expectation that the principal
would discover the comments.
Lex-IS Point:
á
North
Carolina has comparable criminal statutes; it is important to remember from
this case that "intent" is a critical component of a successful
felony charge.
Cyberlaw–
Copyright: Company not liable to students for contract and copyright damages
related to plagiarism software.
A.V. v. iParadigms,
Ltd. Liability Co., No. 07-0293
(E.D.Va., Mar. 11, 2008)
The defendant's software
program, Turintin, enables schools to find instances of plagiarism by
evaluating the originality of student writing projects. The Turintin software
is used by over 7,000 schools and website receives 100,000 daily student
submissions. The program then
compares the written submissions to materials contained in the Turintin
database and in other databases of journal articles and writings and produces
an "originality" report for the teacher. The teacher can then
determine if there are plagiarism concerns. Students who submit their writings
must agree to create a profile and "accept" the user agreement (the
"clickwrap agreement"), which includes a limitation of liability
clause.
Four students from
Virginia and Arizona school systems challenged the defendant's archiving of the
students' written materials. The students were required to submit their written
projects via the company website or receive a zero on the assignment if they
refused. When the students
submitted their written work, their documents contained a disclaimer stating
that they did not consent to having their works archived. The company, nevertheless, continued to
archive their works as part of their database.
The state court ruled
that, under Virginia law, the clickwrap agreement was valid and enforceable,
including the contract's "indemnity" clause the protected the
defendant from liability. The
students' attempt to modify the contract with a disclaimer was not enforceable
because the contract prohibited modification: the original agreement was, in
essence, a "take-it-or-leave-it" offer.
The court also rejected
the plaintiffs' "duress" claims: that they were coerced into signing
the agreement by the school system to avoid penalty. To the extent there was any duress, said the court,
such a claim must be asserted against the school system, not the software
company.
Furthermore, the court
ruled that defendant's use of plaintiffs' archived works did not infringe
federal copyright protections because such use fell under the "fair
use" exception of the law.
The court determined that the use was highly beneficial to the school
and "transformative" (i.e., used for a different purpose): the use of
the materials was for comparative (not expressive) purposes, was not a
disincentive to student creativity, and did not undercut any anticipated
student revenue.
Cyberlaw–
Student Privacy: School system cell phone ban did not violate parents' due
process rights.
Price v.
New York City Bd. of Educ., 2008 NY Slip Op 03512 (N.Y.A.D. 1 Dept., Apr.
22, 2008
The New York City
Education Chancellor issued a ban on student cell phones, which led to the
confiscation of thousands of such phones. Parents sued, alleging federal and
state due process violations. The
state supreme court ruled that the ban was a rational and legitimate exercise
of the schools' power to maintain order and discipline in the schools.
Cyberlaw–
Religious Establishment: School website containing link to anti-homosexuality
websites was permissible.
Harper ex rel. Harper v.
Poway Unified School Dist. (S.D.Cal.)
A federal district court
in California has ruled that a school webpage that included links to religious
websites opposing homosexuality did not violate the First Amendment
Establishment Clause. The plaintiffs failed to prove that the links did not
fulfill a secular educational purpose or effect or that the links excessively
entangled the school with religion.
The court noted that a student had previously been disciplined for
wearing an anti-homosexuality t-shirt, showing that the district was not pursuing
a religious agenda.
Source: Westlaw Watch.
Cyberlaw–
Operations: Wisconsin law to keep cyber schools running.
Wisconsin has passed a
law allowing online schools to qualify this fall for state aid, but limits
their enrollment and subjects them to program audits.
Source: Milwaukee
Journal-Sentinel, April 7, 2008.
CyberNews –
Student Safety: The naked truth about teen photo distribution.
A recent article
describes the alarming trend of students using cell phones and other electronic
devices to distribute nude and sexually explicit pictures of themselves or
others. Because of the ease and
anonymity of electronic communications, these communications can be distributed
widely and, in some cases, lead to great physical and emotional harm.
Teens who send nude
pictures of themselves or receive nude pictures from other teens may not be
aware of the legal risks. As
indicated in the article and according to the U.S. Department of Justice
(www.usdoj.gov):
á
Any
image of a child -- defined as anyone under 18 -- engaged in sexually explicit
conduct is illegal contraband.
á
The
legal definition of sexually explicit conduct does not require that an image
depict a child engaging in sexual activity. A picture of a naked child may
constitute illegal child pornography if it is sufficiently sexually suggestive.
Source: Raleigh
News & Observer, June 5, 2008
CyberSystems–
E-mail: Spam celebrates 30 years of clogging e-mail inboxes.
A recent news report
reminds readers of the birth of e-mail "spam" 30 years ago when
computer salesman Gary Thuerk, on May 3, 1978, distributed a message on
Arapanet, the precursor to the internet, that read: "We invite you to come see the [Computer System] 2020
and hear about the DECSYSTEM-20 family at the two product presentations we will
be giving in California this month."
The message produced a
backlash from academic and government users of the system. The article cites Microsoft
founder Bill Gates' 2004 prediction that spam would soon be eliminated. This year also marks the
10-year anniversary of the first Viagra spam e-mail; one such early message
offered a bottle of 30 pills for $500.00. Real spam, not the virtual kind, celebrated its 70thbirthday
last year.
Raleigh
News & Observer, May 3, 2008 (from the Washington Post).
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