The digital age raises difficult privacy issues. The Supreme Court of Canada recently said that the expectation of privacy in text messages precludes the use of a general search warrant to obtain them prospectively from a customer’s telco; the cops need to seek authorisation for a wiretap, which is more onerous, necessarily time limited and requires notification of the subject of the wiretap: Telus Communications Co v The Queen, 2013 SCC 16. The Supreme Court has also held that a teacher had a legitimate (if ‘diminished’) expectation of privacy in the school-owned laptop on which he stored child porn: R v Cole, 2012 SCC 53. On the other hand, a warrantless search of a mobile phone with no password protection was upheld by the Ontario Court of Appeal in R v Fearon, 2013 ONCA 106..
From the 6th Circuit in the United States comes a recent case on the limits of a school’s legitimate access to a student’s texts, GC v Owensboro Public School (6th Cir, 28 March 2013). GC is in many ways your typical troubled teen: drug user, ‘disposed to anger and depression’, disciplined at school for swearing and texting in class and for fighting in the locker room. It was the texting that brought things to a head, though. GC’s teacher confiscated his phone and looked at four text messages in order to make sure the teenager was not planning to do something harmful to himself (he had expressed thoughts about suicide) or others (he had punched in some lockers as well as classmates). GC was suspended and sued the school board.
The district court in Kentucky granted summary judgment for the board, but this has in large part been reversed by the 6th Circuit on appeal. The district court incorrectly concluded that GC had been afforded due process before being suspended. And the lower court was wrong to conclude that the search of GC’s phone was OK: the school lacked reasonable grounds to do so, in the absence of evidence of illegal activity or real likelihood of harm. Moore CJ held that ‘using a cell phone on school grounds does not automatically trigger an essentially unlimited right enabling a school official to search any content that is not related either substantively or temporally’ to a suspected infraction. General knowledge of a student’s drug habits or depressive tendencies, ‘without more’, won’t get you there. GC’s claims that the school had failed to meet obligations under state law for special needs students was properly dismissed by the district court, however. While this one is from Kentucky (not generally a state with much judicial impact in Canada), it’s being seen in the US as a case with significance beyond the confines of the state and the 6th Circuit.