Transcript E-Mail - Tharrington Smith

Cyber Law
Presented to:
Leadership Program for Experienced
Principals
Principal’s Executive Program
December 9, 2008
Ken Soo
Tharrington Smith, LLP
© 2008 Tharrington Smith, LLP
Overview
Off-Campus Student Internet Speech
 Off Campus Employee Internet Speech
 Speech on Matters of Public Concern (noninternet cases)
 Surveillance of Electronic Communication
 Copyright
 Hacking

Off-Campus Student Internet Speech

With the computer age comes a new twist
on student speech -- student webpages that
contain critical, vulgar or even violent
content. Whether intended or not, these
websites are often viewed at school,
resulting in substantial consternation for
adults. Courts have generally applied the
Tinker substantial disruption standard to
determine whether students may be
punished for their website content.
Critical/Vulgar Speech
Some excerpts from MySpace groups at various NC
High Schools:
 School “totally sucks”
 “We used to have fuckin back massage days and
nap days in her … class. Sometimes we leaned our
chairs out of the back door of the trailer and smoke
cigs and she wouldn't care. Then she showed up at
some fuckin big parties we had and hit the fuckin
bong with us.”
Critical/Vulgar Speech (cont.)
“There’s hardly ever any fights, or fights
worth seeing, just stupid drama. Like ‘I
slept with your boyfriend’…”
 “ok yea so ___ is the gayest high school
ever”
 “But you know what teacher SUCKS??
_______ (ugh) I have him tomorrow too.”

Beussink by and through Beussink v.
Woodland R-IV School District 53
Student created webpage on home computer
that was highly critical of his high school
administration and included crude and
vulgar language; he was suspended by his
principal.
 Applying Tinker, the court found no
interference with school discipline and order
occurred. Court granted an injunction to
remove the effect of the suspension from
student’s record and to allow student to
repost his webpage.

J.S. v. Bethlehem Area School Dist.
Student created website at home entitled
“Teacher Sux” that described the principal
having sex with another principal and used
vulgar and crude language to describe a
female teacher.
 The teacher became so upset about the
webpage that she took medical leave and
experienced significant emotional distress.
The student was suspended for threat to the
teacher, harassment and disrespect to the
teacher and principal.

J.S. (continued)
The trial court upheld the suspension,
finding that the student’s off-campus speech
interfered with the educational process.
 On appeal, the state supreme court agreed
and held that the website was designed to
and did in fact cause a disturbance to the
learning environment.

Layshock v. Hermitage School
District


Plaintiff student created a parody profile of his
school principal on MySpace.com. It referred to
the principal as a “big steroid freak” and a “big
whore,” amongst other crude references. At the
same time, there were three other unflattering
profiles of the principal posted on MySpace.
The court invalidated the school’s disciplinary
action against the student, holding that the
District failed to establish a sufficient nexus
between the off-campus speech and a substantial
disruption of the school environment.
Layshock (continued)

The court noted that the actual disruption
was minimal – no classes were cancelled,
no widespread disorder occurred, there was
no violence or student disciplinary action.
Also, the court noted pointedly that the
District was unable to connect what
disruption did occur to this plaintiff’s
parody as there were three other similar
profiles available on MySpace at the same
time.
Threats
Mahaffey v. Aldrich


Court rules unconstitutional a disciplinary action
against a student for creating “Satan’s web
page,” which listed people he hoped would die,
including fellow students.
The court found that the site, which included the
statement, “PS: NOW THAT YOU’VE READ
MY WEB PAGE PLEASE DON’T GO
KILLING PEOPLE AND STUFF AND THEN
BLAMING IT ON ME. OK?” was not a true
threat, since a reasonable person would not
regard it as a serious expression of intent to harm
anyone.
Wisniewki v. Board of Education
of Weedsport


Court of Appeals upheld school district’s longterm suspension of a student who sent an
instant message to 15 friends with the graphic
of a gun shooting a bullet into a head, with
blood splattering and the words “Kill Mr.
VanderMolen” (Phillip VanderMolen was the
English teacher of the plaintiff student).
In this case, it was reasonably foreseeable that
the violent imagery would come to the
attention of school authorities and that it would
materially and substantially disrupt the work
and discipline of the school.
Alternatives to Student
Discipline

If the facts in your case don’t clearly
warrant resorting to student discipline, you
still have options:
 Ask the student to take down the
offending material;
 Ask the student’s parents to take down
the offending material; and/or
 Ask the website operator to take down
the offending material.
Off-Campus Employee Internet
Speech
There are no reported cases discussing
employment actions taken against teachers
or other public employees for content on
their MySpace accounts, blogs, or similar
internet forums.
 However, a number of teachers across the
country have been disciplined for
inappropriate internet speech

Internet speech (cont.)
Florida teacher suspended (and possibly
fired) for MySpace.com profile that
allegedly contained “profanity,
inappropriate photographs and
depression/alcohol/drug content.”
 Teacher in suburban Washington D.C. was
investigated for using profanity to describe
a student’s mother on her MySpace blog.

Speech on Matters of Public
Concern (non-internet cases)
Employee speech must be on matters of
public concern to merit protection under the
Constitution. Connick v. Myers
 When public employees make statements
pursuant to their official duties, the
employees are not speaking as citizens for
First Amendment purposes, and the
Constitution does not insulate their
communications from employer discipline.
Garcetti v. Ceballos

Speech on matters of public
concern (cont.)
If the employee was speaking as a citizen
on a matter of public concern, then a
constitutional claim may arise.
 This inquiry requires a judge to balance the
interests of employees in commenting upon
matters of public concern against the
interest of government employers in
promoting the efficiency of public service.
In practice, this balancing test tends to be
fairly solicitous of the rights of private
citizens to engage in free expression.

Employee Speech (cont.)

However, when a person speaks on a matter
of "personal interest," courts will afford
wide latitude to public employers to
discharge employees or otherwise manage
their offices, without intrusive oversight by
the judiciary in the name of the First
Amendment.
Employee Speech (cont.)
Any speech made pursuant to an
employee’s official duties is not protected
by First Amendment
 A teachers’ criticisms of district policy on a
private blog probably would be protected
under the First Amendment
 Criticism of a supervisor for purely personal
reasons probably would not be.

SURVEILLANCE OF
ELECTRONIC
COMMUNICATION
Sources of protection for workers
in the workplace
 Fourth Amendment
protection from
unreasonable searches and seizures
 Electronic Communications Privacy
Act
 North Carolina G.S. § 15A-287
 Common law remedies for invasion of
privacy
Does an employee have a
reasonable expectation of privacy
in the e-mail?

If no -- no issue.

If Yes – did the employer
act reasonably?
Electronic Communications
Privacy Act of 1986
Prohibits the interception of data
transmitted by wire, radio or other
electronic means.
ECPA exceptions that allow
surveillance in the workplace
provider of communication system can
monitor calls and electronic communications
where employer deems it necessary to protect
the business or insure the proper use of the
communication equipment
 if monitoring of calls, voice mail or email is
for the purpose of supervision, evaluation or
any other asserted business interest of the
employer (including the interception of nonbusiness related employee communications),
monitoring is permissible

Consent

Under both federal and state statute, an
employer may intercept electronic
communications if it has obtained consent
of one of the parties

A written policy is best because all parties
will have expressly consented to its terms
North Carolina G.S. § 15A-287
 Follows
the ECPA
 Provider of electronic communication service
may intercept, disclose or use communication
“while engaged in any activity that is a
necessary incident to the rendition” of job or
to protect rights or property of provider
HOWEVER provider may not utilize service
observing or random monitoring except for
mechanical or service qualify control checks
 Civil cause of action for actual damages,
punitive damages; and attorneys’ fees and
costs
Common Law Claims
Intrusion upon a plaintiff’s seclusion,
solitude or private affairs: “one who
intentionally intrudes, physically or
otherwise, upon the solitude or seclusion of
another or his private affairs or concerns, is
subject to liability to the other for invasion of
his privacy, if the intrusion would be highly
offensive to a reasonable person” reasonable expectation of privacy standard
controls
 Intentional infliction of emotional distress

Privacy Interests in Websites?
In a Pennsylvania case, a student created a
website on his home computer that
contained derogatory material directed at
school staff
 The appellate court determined that the
school district did not violate the student's
right to privacy when it accessed the
student's website.

Privacy (continued)

The court noted that the website in question
was not a protected site, meaning that only
certain viewers could access the site by a
known password, so any user who happened
upon the correct search terms could have
stumbled on the website
© Copyright



One of the rights accorded to the owner of
copyright is the right to reproduce or to authorize
others to reproduce the work in copies or
phonorecords.
This right is subject to certain limitations found in
sections 107 through 118 of the Copyright Act
(title 17, U. S. Code).
One of the more important limitations is the
doctrine of “fair use.”
Fair Use
Section 107 contains a list of the various
purposes for which the reproduction of a
particular work may be considered “fair,”
such as criticism, comment, news reporting,
teaching, scholarship, and research.
 Section 107 also sets out four factors to be
considered in determining whether or not a
particular use is fair:

Fair Use (continued)
1.
2.
3.
4.
The purpose and character of the use,
including whether such use is of commercial
nature or is for nonprofit educational
purposes;
The nature of the copyrighted work;
Amount and substantiality of the portion
used in relation to the copyrighted work as a
whole; and
The effect of the use upon the potential
market for or value of the copyrighted work.
Fair Use (continued)
5.
The distinction between “fair use” and
infringement may be unclear and not
easily defined. There is no specific
number of words, lines, or notes that
may safely be taken without
permission. Acknowledging the source
of the copyrighted material does not
substitute for obtaining permission.
A Real Fair Use Scenario
An unattributed poem is submitted to an
elementary school’s online Daily
Announcements site
 The poem is posted on the site without
attribution and with an incorrect title
 It is accessible from the school and district
webpage only until the next day, when a
new Daily Announcement is posted

Scenario (cont.)
Out of the blue, the Superintendent received
an email from a representative of the author
of the poem
 The poem was in fact copyrighted, and the
representative demanded $5000 for a full
release from liability from the alleged
infringement

Scenario (cont.)
Holders of copyrights can, and often do,
hire services which monitor and search the
internet looking for violations of copyright
 This is how the elementary school’s
newsletter came to the attention of the
author of the poem
 The District ultimately did not pay and
never heard from the copyright holder
again, but this could have been a bigger
issue

Hacking
Hacking is breaking into computer systems,
frequently with the intentions to alter or
modify current settings. These break-ins
may cause damage or disruption to
computer systems or networks.
 Unauthorized access entails approaching,
trespassing within, communicating with,
storing data in, retrieving data from, or
otherwise intercepting and changing
computer resources without consent

Computer Crimes in N.C.
North Carolina has a full statutory scheme
covering computer crimes (N.C.G.S. 14-453
through 14-458
 Sec. 14-454.1(c) provides: “Any person
who willfully and without authorization,
directly or indirectly, accesses or causes to
be accessed any educational testing material
or academic or vocational testing scores or
grades that are in a government computer is
guilty of a Class 1 misdemeanor”
(punishable by 6-12 months in prison)

CIPA, Hacking and Board Policy
Under the Children’s Internet Protection Act
(CIPA), your District must have a policy on
acceptable use of electronic resources in
order to receive federal e-rate funds
 Schools and libraries subject to CIPA may
not receive the discounts offered by the ERate program unless they certify that they
have an Internet safety policy and
technology protection measures in place.

CIPA and Board Policy
An Internet safety policy must include
technology protection measures to block or
filter Internet access to pictures that: (a) are
obscene, (b) are child pornography, or (c)
are harmful to minors, for computers that
are accessed by minors;
 Schools subject to CIPA are required to
adopt and enforce a policy to monitor online
activities of minors; and

CIPA and Board Policy (cont.)

Schools and libraries subject to CIPA are
required to adopt and implement a policy
addressing:
a)
b)
c)
access by minors to inappropriate matter on
the Internet;
the safety and security of minors when using
electronic mail, chat rooms, and other forms
of direct electronic communications;
unauthorized access, including so-called
“hacking,” and other unlawful activities by
minors online;
CIPA and Board Policy (cont.)
d)
e)

unauthorized disclosure, use, and
dissemination of personal information
regarding minors; and
restricting minors’ access to materials
harmful to them.
Violation of Board Policy allows school to
take disciplinary action against students
for hacking or other computer-related
offenses