Sunday, March 7, 2010

LMSD fights back! Pennsylvania laptop web cam is a violation of Blake Robbins 4th Amendment rights

Pennsylvania school spies on students using laptop web cam    Actions of  Lower Merion School District a complete bastardization of Blake Robbins 4th Amendment Rights Under the US Constitution

It is tragic when the monster you are protecting your children from is their own school.  This is a case which turns you stomach if any case ever could.  We expect cameras in just about any place public we go.  Traffic intersections, photo radar, court houses and government installations, and yes, I have even seen them in public bathroom, discretely placed of course.

CCTV picture is from freefoto dot com

The Lower Merion School District pulled a fast one on the student body by installing spy cam software in the Apple laptops they handed out to the student body. They can activate the software at any time and take snap shots of what ever is in front of the computer without the computer user's knowing about it.  The FBI is investingating the Pennsylvania computer lap top scandal.

Constitutional law

The Fourth Amendment to the US Constitution says:  '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.'

There are many problems with the actions of the LMSD using spy cameras in computer laptops.  The school board splintered the notion of the expectation of privacy and right of each citizen against unreasonable searches and seizures.

Spying on students

Not even the police have the authority to arbitrarily plant listening, video or photographic devices in people's homes without their knowledge unless they have a warrant.  It is clear with the LMSD no warrants were ever sought, therefore, as a constitutional matter, their activities violated the law.

"All drug traffickers are terrorist and subject to the almost non-existent court over-sight of law enforcement activity"

There are exceptions to the no warrant requirement.  The Patriot Act expands government authority wildly.  The Act allows warrantless searches if the party is believed to be engaged in the act of Terrorism, including domestic terrorismThe definition of 'involved in the act of terrorism" has a reckless and overly broad interpretation.  For example, the powers that be have determined at some time in the past terrorist organizations traffic in drugs in order to fund their activities.  The Act includes:

"(4) any narcotics trafficking entity designated pursuant to Executive Order 12978 (October 21, 1995) or the Foreign Narcotics Kingpin Designation Act (Public Law 106-120)"

Therefore, all drug traffickers are terrorist and subject to the almost non-existent court over-sight of law enforcement activity.  You can read the Patriot Act in it's full glory here.  It is technical in nature as are most laws but a great challenge for a student heading to law school!
There are few situations in which an ordinary citizen will not fall under the act.  One of them is eating Mike and Ikes candy. 
While the school board might make an argument they suspected a student of narcotics trafficking, searching for a lost notebook won't cut the mustard.  If they subsequently find a person involved in narcotics traffiicking, the original search was illegal, hence under the Fruit of the Poisonous Tree Doctrine in Constitutional law.  The law says in so many words,
"fruit of the poisonous tree" doctrine is an offspring of the Exclusionary Rule. The exclusionary rule mandates that evidence obtained from an unreasonable search,  must be excluded from trial. Under the fruit of the poisonous tree doctrine, evidence is also excluded from trial if it was gained through evidence uncovered in an unreasonable search.  The fruit of the poisonous tree doctrine was established primarily to deter law enforcement from violating rights against unreasonable searches and seizures."
Note, the law may not prohibit the collection of data through unreasonable searches.  It precludes use of the information in the prosecution of the case.  Therefore, when Vice Principal Lyn Matsko confronted 15 year old Blake Robbins for what she thought was illegal narcotics use she broke the law in the prosecution portion of the 'Fruit of the Poisonous Tree' Doctine.  There mere collection of the evidence is subject to question.
The biggest problem with the Pennsylvania computer spy cam case is the violation of the reasonable expectation of privacy.  According to the itlaw wickja:
"To establish a reasonable expectation of privacy a person must establish two things:
1.  That the individual had a subjective expectation of privacy;
2. That subjective expectation of privacy is one that society is prepared to recognize as reasonable.
If either element is missing, no protected interest is established (according to Katz v. the United States)."
The privacy of one's own home is a place in which "society is 'prepared to recognize as legitimate'".  As a result, it didn't matter what Blake was doing, masturbating, making love, in the bathroom or only dining on Mike and Ikes candy.  The expectation of privacy is paramount in one's own home.
If the government, in this case the Lower Merion School District, had informed students of the ability to spy on them using a computer lap top, there might be grounds to consider such spying. Take a look at United States v. Jerome T. Heckenkamp which is explained on Proskauer.
"The only ones who win in court are the attorneys"
The problem with law is a decision of a court may turn on the slightest detail and precedent then set.  There are no guaranteed winners in Blake's law suit, which is Blake J. Robbins v. LMSD.  While it looks like Blake has the upper hand, the case could turn on a dime and the school district come out with less of a shinner.  They already have a black eye.
It is for this reason, and for the benefit of the students at Herriton Senior High school near Philadelphia, Pennsylvania that I suggest these people put on the conflict resolution hats and settle this matter.  Most people who win big in court say the experience was not worth it.  There is an old saying, the only ones who win in court are the attorneys!  Trust me, even they suffer an untold toll. 
Blake is a long ways away from winning his suit.  The LMSD has a lot of legal bills to pay and likely will lose.  Meanwhile, everyone in the community suffers, including the current and next senior classes of Herriton Senior High School.   That is my opinion.  Take it as you wish!

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