I See Law School In This Kid’s Future

A sixth grade student in Minnesota recently struck a blow for privacy when she prevailed in a case against her school over her privacy rights in a Facebook message. The student, who is identified in the court’s opinion only as “R.S.” apparently sent some Facebook messages that contained “inappropriate sexual banter.” When school officials heard about it, they confronted R.S. and threatened her with detention unless she gave them her Facebook user ID and password. She did, and the school officials looked through her public and private messages for about 15 minutes. The litigation questioned whether the school violated the student’s Fourth Amendment right to be free from an unreasonable search and seizure. Here, the court determined that it did. The key factual element to the decision was that the school looked at Facebook messages, not publicly available wall postings. While the student may not have had a reasonable expectation of privacy in publicly available wall postings, the messages, which were not publicly available, were private. The case also had an interesting side note. R.S. was not 13, and therefore, under the minimum age to set up a Facebook account. The school argued that this meant that she had no reasonable expectation of privacy. But the court saw no reason why R.S. should lose her privacy rights even if she skirted Facebook’s terms of service. Interestingly, in a footnote, the court pointed out that a recent study found that 7.5 million Facebook users are under the age of 13, and 5 million are under the age of 10. I hate to be judgmental here, but maybe Facebook needs to tighten things up a bit. And as always, note that this case does not apply to private schools. The Fourth Amendment applies to government conduct, and thus covers public schools only. So in my case, Sister Mary Anthony (that really was my sixth grade teacher’s name) could have forced me to give up my password (and she would have just guilted me into it – she was really good at that) with no concern for the Constitution. Of course, in 1969 (when I was a sixth grader), no one had any idea what Facebook was, and as a sixth grader I had no clue what sexual banter was.