Legal Instruction
and Support for School Leaders
2009 Cyberlaw Updates
Last Updated: April 17, 2009
Headlines Links
(Click the header
links below to view full summaries; blue headers indicate postings since our
last e-law listserv update.)
U.S.
and 4th Circuit Cases & News (NC, MD, SC, VA, WV)
CyberSafety: Overturned law to protect children from online pornography
rejected by Supreme Court
North Carolina Cases
& News
CyberSafety—Social
Networking: N.C. sex offenders
identified and removed from social networking site MySpace
Legal
Updates: Other Jurisdictions
CyberSystems—E-Mail: New Jersey court bars school board candidates from soliciting
support via school system e-mail
CyberSafety—Sexting: Court precludes criminal charges against student for sexting
pictures through her cell phone
CyberSafety: Wisconsin teachers firing for viewing pornographic images
on-line at school upheld by state court of appeals
CyberSpeech—First
Amendment: California
community college may restrict Internet use on library computers to educational
and employment uses
CyberSpeech—Privacy: Connecticut court determines principal
had reasonable expectation of privacy in her school email account
CyberSpeech—First
Amendment: Fake teacher and
school administrator MySpace pages posted by students not protected as parodies
Other
News
CyberSafety—Privacy: Felony child pornography charges for
teen sexting provokes controversy
CyberSafety—Social Networking: As troubling online video postings of
teen violence increase, schools contemplate how to fight back
U.S. and Fourth Circuit Cases
and News
(Affecting schools in North
Carolina, Maryland, South Carolina, Virginia, and West Virginia)
The Child Online Protection Act (COPA), created and approved by Congress over 10 years ago, was intended to prevent minors from accessing harmful content via the Internet. In early 2009, though, the Supreme Court effectively quashed COPA by refusing to hear an appeal from the Third Circuit Court of Appeals which struck down the Act as unconstitutional. The Third Circuit determined the law was a violation of the First Amendment and that Internet filter and other parental-control technologies constituted less restrictive means and, therefore, of less threat to free speech)to protect children from online harm. Read the 3rd Circuit decision.
In response
to a subpoena issued by North Carolina Attorney General Roy Cooper, the social
networking website MySpace has turned over the names and e-mail addresses of
2,116 convicted North Carolina sex offenders found to be using the site. In addition, MySpace has removed the
individuals from the site.
This move
is significant because a new state law (effective Dec. 1, 2008) prohibits sex
offenders from being active on websites where children are also active. Consequently, Attorney General Cooper
is forwarding the information he received to state law enforcement agencies for
further action. Read
the story.
Legal Updates: Other
Jurisdictions
(Cases not binding in the Fourth
Circuit)
CyberSystems—E-Mail: New Jersey court bars school board
candidates from soliciting support via school system e-mail.
According to a recent news
report, a New Jersey state court issued a cease and desist order to two board
candidates from using school system e-mail server to solicit support from
system employees. The candidates
purportedly obtained the staff e-mails from the school web site. The systems technology policy
prohibits staff from using the systems network to assist with a campaign for
election of any person to any office or for the promotion of or opposition to
any ballot proposition. The
provision applies to anyone using the systems mail server. Source:
Asbury Park Press, Mar. 24, 2009.
CyberSafety—Sexting: Court precludes criminal charges
against student for sexting pictures through her cell phone. Miller v.
George Skumanick (M.D.Pa. Apr. 3, 2009)
A judge ordered a
Pennsylvania district attorney from filing criminal pornography charges against
female students after they sent pictures of themselves clad in their underwear
via their cell phones. Officials
at the girls school found pictures in several student cell phones of
"scantily clad, semi-nude and nude teenage girls and turned the phones
over to the district attorney. The
parents, in this case, successfully contended that the images did not
constitute child pornography since they did not depict sexual activity or show
the girls' genitalia. The district
attorney had demanded in lieu of being criminally charged, that the girls
attend a "re-education" program and write essays about their improper
conduct. The parents successfully
argued that such a requirement violated their due process rights to educate
their children. Source: Westlaw
Watch, April 16, 2009. Read The FirstPost article.
A Wisconsin public school teacher
was fired for just cause because he used his school computer to view
pornographic images at school. The
teacher appealed his firing and an arbitrator reinstated him because his
11-year employment record was otherwise clean and he used his office computer
(as opposed to a public computer) to view the images.
However, the Wisconsin Court of Appeals overturned the
arbitrators decision holding that a clean employment record with the school
was not sufficient to overcome the strong public policy against immoral conduct
in schools. Read the case.
The California Court of Appeals
upheld a community colleges policy which limited the use of library computers
for accessing the Internet except for educational or employment purposes. The court found this restriction did
not conflict with a state statute prohibiting schools from punishing students
for actions in violation of school rules that would otherwise be protected by
the First Amendment because the schools library computers were not part of a
public forum. Read the case.
A
Connecticut district court found that a school principal had a reasonable
expectation of privacy in her email, including an email and attachment she sent
to her attorney describing problems she was having with the school
superintendent. While the
principal was on medical leave, the superintendent accessed the principals
email account and forwarded the email and attached letter she had previously
sent to her attorney to his email account in violation of her Fourth Amendment
rights against unreasonable searches.
The
court also found that the principals use of her computer to draft and send the
letter was within the schools Acceptable Use Policy (AUP), which restricted
use of school computers to professional or career development-related
uses. Additionally, while the AUP
also permitted routine monitoring and maintenance of the computer system, the
court did not believe the superintendents actions qualified as such. Read the case.
A
group of high school students in Tennessee created fake Internet profiles for a
teacher/coach and assistant principal at their school and posted them on the
social networking site, MySpace. The profiles, which were accessible to the
general public, contained sexually suggestive comments about female students
that appeared to have been posted by the school employees. The students claimed their websites
were parodies and therefore protected by the First Amendment. However, the court held that the
profiles were not parodies because they were reasonably believable (in fact,
the school received calls about the postings from concerned community members)
and were not clearly exaggerated to enhance humor.
Other News
The phenomenon known as
sexting, whereby teens send nude or semi-nude self-portraits via cell phone, has
become more prevalent in the United States as cell phones with built-in cameras
have become virtually ubiquitous.
Studies have indicated up to 20% of teen girls have sent or posted
online revealing self-portraits.
In some jurisdictions, ambitious prosecutors have begun charging teens
with child porn violations for sexting.
This has proven controversial because child porn charges are generally
felonies and can result in teenagers obtaining permanent sex offender
status.
Prosecutors
maintain such harsh penalties will convey the seriousness of the activity and
quickly end the practice. However,
others view the criminal penalties as excessive for teens guilty of little more
than poor judgment. Opponents
believe the incidents are best handled between parent and child, with parents
exercising more control over the technology use of their children. Source: e-School News, Feb. 5, 2009. Read the
story.
YouTube
and websites like it that allow users to post self-made video content have
become repositories for a great deal of video depicting teen violence. Some of the videos are created
spontaneously when inevitable schoolyard fights break out, but more troubling
are the videos that demonstrate premeditation, such as the beating of an
unsuspecting teenager last year in Florida. Officials fear these videos, which are quite popular online
and can draw over a million viewings, are glamorizing violence and will
encourage even more such behavior.
Ironically,
some school officials have used YouTube as a tool to identify and punish
students involved in fights that they might not otherwise have detected, a task
made easier when identifying information like school names are posted with the
videos. A few schools have even
added rules to their student policy manuals banning the recording of fights,
with violators subject to punishment including suspension.
Finally,
elected officials in Californias state government have proposed a new state
law that would require YouTube and similar websites to actively search for and
remove violent video content.
YouTube currently employs a user enforcement procedure whereby any user
can flag a video for graphic or gratuitous violence. The company then reviews flagged videos
for rules violations and potential removal. Source:
e-School News, March 19, 2009.
Read
the story.
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