US Judge rules school violated First Amendment by demanding Facebook password from 12-year-old girl

On September 6, US Judge Michael Davis ruled that the Minnewaska Area School District in Minnesota violated the First Amendment (freedom of speech) and Fourth Amendment (unreasonable search and seizure) rights of a 12-year-old student by forcing her to hand over her Facebook password to school officials who in turn used it to search for messages they deemed inappropriate. If the alleged facts are proven to be true, the school will likely have to write a settlement check, and will also be subject to claims of invasion of privacy (claims for “intentional inflection of emotional distress” were dismissed by the judge).

Because of her young age, the girl’s full name was not disclosed; she’s merely referred to by her initials: R.S. The American Civil Liberties Union (ACLU) of Minnesota sued Minnewaska Area Schools and Pope County officials on behalf of R.S.

If you don’t remember this case, here’s the backstory, which I wrote about back in March for ZDNet:

The ACLU explains the school disciplined the girl, known only as R.S., after she posted on Facebook that she “hated” a hall monitor who was “mean” to her. School principal Pat Falk said the comment constituted bullying; R.S. was given detention and told to apologize. The sixth-grade student was at home when she posted the comment: no school computer or school connections were used, the ACLU points out. Afterwards, she posted another comment, cursing that someone had shown her first one to school officials. The school district responded by giving her an in-school suspension and prohibiting her from attending a class ski trip. The ACLU argues the discipline violated the girl’s free speech rights.

In a second incident, the ACLU says school administrators forced R.S. to hand over her Facebook login credentials (e-mail address and password) and e-mail accounts after a boy’s mother complained that her son and the girl were talking about sex. The ACLU notes that while an unidentified school employee, a school counselor, and a local deputy sheriff were present, a warrant was not. Furthermore, the girl’s mother allegedly did not consent the search of her daughter’s Facebook chat logs. The group claims this violated the girl’s right to privacy and right to be free from unreasonable search and seizure.

At the time, an ACLU spokesperson said: “Students do not shed their First Amendment rights at the school house gate. The Supreme Court ruled on that in the 1970s, yet schools like Minnewaska seem to have no regard for the standard.” The judge agreed last week, when he dished out the following ruling, according to Eric Goldman (via TechDirt):

First Amendment claims: The court has no trouble concluding that assuming the facts as alleged as true, school officials violated R.S.’s First Amendment rights. The court says that posts on social networks are protected unless they are “true threats” or are reasonably calculated to reach the school environment and pose a safety risk or a risk of substantial disruption of the school environment. R.S.’s posts were not true threats. Even assuming the statements were reasonably calculated to reach the school audience, there was no possibility of disruption.

Fourth Amendment claims: The court also says that the school officials violated R.S.’s Fourth Amendment rights to the extent they rummaged around in her Facebook page and her private email account. Private emails were like letters of other private conversations, and subject to Fourth Amendment protections. Private Facebook messages are no different. There was no evidence that the officials tailored their search to minimize the intrusion. Even if they had, they had no underlying basis to search in the first place.

Other claims: The court does dismiss the claims for intentional inflection of emotional distress. However, it allows the claims for invasion of privacy. In passing, it also rejects the school’s argument that R.S.’s violation of Facebook terms (by misrepresenting her age when she signed up) does not mean that she is entitled to fewer privacy protections.

If you’re wondering what rule R.S. violated, it’s this one: she wasn’t allowed on Facebook in the first place. The Children’s Online Privacy Protection Act (COPPA) requires that websites which collect information about minors aged 13 or younger gain explicit parental consent to access commercial websites. As a result, Facebook’s terms of service (Statement of Rights and Responsibilities) clearly states under the “Registration and Account Security” section: “You will not use Facebook if you are under 13.”

The rule leaves a loophole open for Facebook: if parents give their children permission, and we’ve seen that they do so on a consistent basis, the social networking isn’t responsible as its rules were violated. Millions of preteens and children use the service by simply lying to get past sign-up restrictions. Facebook has said time and again that it’s a problem that can be solved overnight, and Mark Zuckerberg wants the minimum age limit removed anyway.

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