T.L.O. and Cell Phones: Student Privacy and Smart Devices After Riley v. California

T.L.O. and Cell Phones: Student Privacy and Smart Devices After Riley v. California Bernard James I. INTRODUCTION ............................................................................. 344 II. SEMINAL CASES ............................................................................. 346 A. RILEY V. CALIFORNIA ............................................................. 346 B. NEW JERSEY V. T.L.O............................................................. 348 III. RECONCILING RILEY AND T.L.O. ................................................... 351 A. THE COURTS AND THE PROPER TEST FOR PROTECTING STUDENT PRIVACY INTEREST IN CELL PHONES .......................... 351 B. SCHOOL OFFICIALS AND THE PROPER JUSTIFICATION FOR SEARCHING STUDENT CELL PHONES ......................................... 356 IV. MODELS OF RILEY AND ITS INFLUENCE ON SCHOOL DISCIPLINE .................................................................................... 361 A. CELL PHONES AND SCHOOL DISCIPLINE: FIVE EXAMPLES ........... 361 1. Scenario 1: Violation of School Rules Unrelated to Cell-Phone Possession and Use .................................... 361 2. Scenario 2: Use of Cell Phone in Actual Misconduct .................................................................... 362 3. Scenario 3: Violation of School Rules That Prohibit Cell-Phone Possession and Use .................................... 363 4. Scenario 4: The Confiscated Device ............................ 364 5. Scenario 5: The Abandoned or Lost Device ............... 365 V. CONCLUSION ................................................................................ 366  Professor of Constitutional Law, Pepperdine University School of Law. I would like to thank Adam Lewental and Raija Churchill for their research and critical observations on the contents of this Essay 343 344 IOWA LAW REVIEW I. [Vol. 101:343 INTRODUCTION A ruling by the United States Supreme Court will often alter a single element of a rule of law in a manner that effects change throughout the doctrine itself. This is plainly evident in the search-and-seizure case of Riley v. California.1 The Court in Riley affirmed the vitality of the so-called “searchincident-to-arrest” exception to the warrant requirement of the Fourth Amendment.2 However, the Justices severely limited the exception in an emerging context—when the property of the arrestee happens to be a cell phone or device that contains smart technology. The Riley decision categorically makes the warrantless seizure and harvesting of the digital contents of smart devices unlawful absent additional justification by police. Riley accomplishes this with aplomb, placing cell phones on a unique footing as a matter of constitutional law because “[c]ell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person” and “ha[ve] several interrelated consequences for privacy.”3 A change in Fourth Amendment doctrine in light of Riley is predictable, if not difficult to discern, in accord with the law of unanticipated consequences.4 In education law, Riley sits uncomfortably alongside New Jersey v. T.L.O.5 and its dominant role in resolving assertions of student privacy in the context of campus safety and school discipline. T.L.O. establishes a “search-incident-to-school-discipline” exception to the Fourth Amendment, authorizing searches and seizures of students and their property based upon mere reasonable suspicion.6 Under T.L.O., educators enjoy generous deference from judicial review because “standards of conduct for schools are for school administrators to determine without second-guessing by courts.”7 Except in cases both rare and egregious, most student searches are upheld because “maintaining security and order in the schools requires a certain 1. Riley v. California, 134 S. Ct. 2473 (2014). 2. Id. at 2482–84; see also U.S. CONST. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”). 3. Riley, 134 S. Ct. at 2489; see also id. (“[M]any of these devices are in fact minicomputers . . . .”). 4. See Robert K. Merton, The Unanticipated Consequences of Purposive Social Action, 1 AM. SOC. REV. 894, 895 (1936) (“[T]he consequences of purposive action are limited to those elements in the resulting situation which are exclusively the outcome of the action, i.e. those elements which would not have occurred had the action not taken place. Concretely, however, the consequences result from the interplay of the action and the objective situation, the conditions of action.”). 5. New Jersey v. T.L.O., 469 U.S. 325 (1985). 6. Id. at 341–42. 7. Safford Unified Sch. Dist. #1 v. Redding, 557 U.S. 364, 371 n.1 (2009) (citing T.L.O., 469 U.S. at 342 n.9). 2015] STUDENT PRIVACY AND SMART DEVICES AFTER RILEY 345 degree of flexibility in school disciplinary procedures, and [courts] have respected the value of preserving the informality of the student-teacher relationship.”8 This Essay takes up the question posed by the law of unintended consequences: whether and to what extent the rule of Riley affects a student’s right to privacy in the contents of a cell phone.9 The interplay of Riley and T.L.O. is inevitable; a study estimates that 77% of teenagers take their phones with them to campus every school day.10 Student possession of these devices place juveniles at risk of searches and seizures, and at least 65% of public schools have codes of conduct that prohibit possession and/or use of cell phones.11 The Riley–T.L.O. interplay raises two principal questions: (1) does the higher-order privacy interest of citizens in the digital contents of cell phones and smart devices apply to students in the school setting?; and (2) if yes, then what rules apply when school discipline involves a search and seizure of the digital contents of a cell phone? As the discussion below sets forth, the law in Riley veers off from its initial criminal-procedure context to prompt singular changes in privacy law.12 Riley and T.L.O. are reconcilable, but only in a framework that allows educators to maintain discipline while allowing for the emerging higher-order privacy interest of students in their smart devices. Consequently, Riley modifies T.L.O., stopping just short of requiring school officials to obtain warrants to justify searching students’ smart devices. The single most important element of this reconciliation is the “reasonable scope” limitation on school searches already 8. T.L.O., 469 U.S. at 340. The rare and egregious case typically occurs in the strip-search context. Compare the quote above from T.L.O. with the increased judicial scrutiny in Safford, which held that “the categorically extreme intrusiveness of a search down to the body of an adolescent requires some justification in suspected facts, general background possibilities fall short.” Safford, 557 U.S. at 376. 9. See Merton, supra note 4, at 898–99. Merton describes the different justifications that explain how actions may have unexpected consequences—positive, negative, or merely neutral. An exegesis of the doctrine is beyond the scope of this Essay. It is enough now to use Merton’s seminal thesis as a metaphor for understanding how T.L.O. must be modified: “[I]n the study of human behavior . . . the set of consequences of any repeated act is not constant but there is a range of consequences, any one of which may follow the act in any given case.” Id. 10. See Amanda Lenhart et al., Chapter Four: How Parents and Schools Regulate Teens’ Mobile Phones, PEW RES. CTR. (Apr. 20, 2010), http://www.pewinternet.org/2010/04/20/chapter-fourhow-parents-and-schools-regulate-teens-mobile-phones. 11. NAT’L ORG. OF SCH. RES. OFFICERS, SCHOOL SAFETY POLICY SURVEY (2014) (on file with author). The survey results for the question “How often does your Safe School Plan conduct cell phone searches?” were as follows: Always, 4.4%; Often, 23.2%; Little, 37.1%; Never, 32.7%; Not Applicable, 2.6%. Id. 12. See JOHN MANSFIELD, THE NATURE OF CHANGE OR THE LAW OF UNINTENDED CONSEQUENCES: AN INTRODUCTORY TEXT TO DESIGNING COMPLEX SYSTEMS AND MANAGING CHANGE, 4 (“[H]uman designers fail to understand the nature of change.”); id. at 6 (“[A]ll systems are co-evolutionary in nature. . . . In complex systems change is inevitable and small local changes propagating through the system can cause global changes in system behaviour.”). 346 IOWA LAW REVIEW [Vol. 101:343 built into the T.L.O. framework.13 Riley’s primary effect on T.L.O. is to make more rigid the “reasonable scope” limitation on school discipline involving student cell phones and tablets. What emerges is an altered T.L.O., prohibiting searches of cell phones and smart devices unless the educator has the additional justification of reasonable suspicion of danger or reasonable suspicion of the student’s resort to the device as a hiding place for evidence of wrongdoing. The guiding principle going forward is grounded in both logic and rule of law by carefully applying the decision of the Court from another higherorder privacy case—the strip search decision of Safford Unified School District #1 v. Redding.14 Hence, the expectation of privacy students possess in the digital contents of their cell phones after Riley is now at least equal to the higherorder privacy interest that prohibits strip searches by educators without additional justification. Despite this increased rigor, the most unanticipated consequence of Riley is the modest practical constraint on school disciplinary policies. When the fundamentals of school discipline and the educators’ duty to protect students are properly accounted for, the increase in student autonomy is not as much as one might...