Webcams in Classrooms: How Far is Too Far?

I. INTRODUCTION

Trends in School Violence

Columbine, Pearl, and West Paducah bring to mind horrific images of children opening fire on other children.1 It seems as if there is a new story of unspeakable violence almost every week.2 Parents are demanding action and school districts are

scrambling to find a solution.3 In the wake of these highly publicized school shootings, communities are willing to trade some basic legal protections for a greater level of safety. What often goes unmentioned is that violence in schools around the nation has been on a downward trend since the mid-1990's. From 1992 to 2000, nonfatal violent incidents of rapes, assaults, and robberies dropped 46% from 48 to 26 per 1000 students.4 While students are safer at school than almost anywhere else,5 public perception has been shaped by several high-profile shooting deaths in schools in recent years. Consequently, school districts are introducing strict disciplinary policies and developing safety plans that incorporate the latest technology.6 Metal detectors and surveillance cameras are now as common in suburban areas as in the inner cities.7 The purpose of this Chalk Talk is to discuss why webcams in the classroom, one of the newest approaches to enhancing school security, do not provide an optimal level of safety and are not the best solution to end violence in schools. Webcams are an intrusion into the learning environment masquerading as a safety precaution. School administrators can develop a false sense of security, and the unintended consequences of mishandled information, as well as the potential liability of such negligence, will far outweigh any realized benefits.

II. BACKGROUND

A. Electronic Surveillance

The first major electronic surveillance law, Title III of the Omnibus Crime Control and Safe Streets Act passed in 1968, did not address video surveillance.8 By 1984, with video surveillance no longer a new concept, courts began to broadly interpret the Act to cover technology developed after its enactment.9 The Electronic Communication Privacy Act of 1986 codified this interpretation by allowing law enforcement to use video surveillance.10

B. Video Surveillance Comes of Age

Closed circuit television (CCTV) surveillance was initially used by law enforcement to monitor businesses, schools, and residential areas in an effort to reduce crime.11 By the 1999-2000 school year, 15% of public schools nationwide reported using some form of video surveillance.12 The CCTV systems can either be actively monitored or they can passively collect data.13 Surprisingly, most schools using a video surveillance system have not had such systems professionally evaluated for effectiveness.14 However, those same schools have reported a decrease in property crimes such as theft and vandalism.15 The CCTV systems are also being used for both classroom instruction and to monitor the activities of students and teachers.16

C. Webcams - The New Kid on the Block

Webcams are small cameras that take pictures at regular intervals and upload the information to a website.17 Schools can begin operating a webcam surveillance system with a webcam, a personal computer with internet access, and a website to view the pictures.18 Webcams can be purchased for as little as $100 and some websites will host an individual's pictures for free.19 Compared to CCTV, webcams are far less expensive and data can be accessed from any system with an internet connection.20 Currently, some schools on military posts use webcams to allow deployed soldiers to see their children.21 Internet searches turn up hundreds of websites displaying live footage of everything from tourist destinations to school halls.22

III. BILOXI EXPERIMENT

The Safe School Act of 1994 makes safety in schools a priority by establishing a program to use grants to pay for safety measures, including video surveillance.23 Biloxi, Mississippi's school district was the first in the nation to place webcams in all of its classrooms.24 As part of a $70 million funding project, the Biloxi school system spent money raised from local casinos to install the $2 million system in all of its schools.25 The small cameras are mounted in classrooms and record images, but not sound. Although a final policy is not yet in place, the data the webcams collect are currently password protected, and access is limited to school principals, vice principals, and superintendents.26 The district hopes to reduce disruptions and deter individuals from committing crimes in the classroom.27 To some, it is a safety measure that is needed to protect the children from violence, while to others it is a privacy invasion that invites abuse.28

IV. ANALYSIS OF THE CONSTITUTIONAL ISSUES

A. Privacy and Resulting Liability

As law currently stands individuals have no expectation of privacy in public places.29 Video surveillance in a public space is a legitimate exercise of police power.30 According to the Supreme Court, while in school, students have an even lower expectation of privacy than the public in general.31 The result is that classrooms are public spaces where students have no expectation of privacy. While school districts probably will not have to worry about infringing on privacy rights, they do need to be aware that they may be liable if they violate other fundamental rights.32 Normally, the state does not owe an affirmative duty to protect citizens from third-party violence.33 However, courts have created two narrow exceptions to this rule: the special relationship exception and the state-created danger exception. The special relationship exception may apply where the state assumes responsibility for the individual, normally prisoners or institutionalized mental patients.34 The state-created danger exception may apply where state actors created the dangerous circumstances and the danger was foreseeable.35

B. Understanding the Results through Cases

In Sherman ex rel. Sherman v. Helms,36 a student who was sexually assaulted in an area lacking security cameras sued the school. The court decided in favor of the school, finding individuals videotaped in public have no expectation of privacy.37 The court further held that the student failed to show that limiting surveillance cameras to the school's main building was the cause of the assault.38 Contrast that case to Combs v. School Dist. of Philadelphia,39 in which a student sued the school after he was assaulted in view of an unmonitored security camera. Though the district attempted to assert it was entitled to immunity from liability, the court used a four-part test to determine that the district could be liable for creating a dangerous environment.40

C. Apply the Law to Webcams

1. Legislative Purpose

Mississippi has adopted school safety legislation with a stated purpose to reduce discipline problems in the classroom, help teachers prevent disruptive behavior, and give teachers feedback on their performance.41 Biloxi has embraced this challenge and aggressively moved to implement new technology under this legislation.42

2. Unintended Consequences

First, information created or collected for one purpose can be used for another. One of the most widely acknowledged examples is the Social Security number (SSN).43 Initially, the Social Security Board assigned a number to each account as a way of tracking the worker's lifetime earnings, contributions, and benefits.44 The Board assured the public that the numbers would only be used for that purpose.45 Today, SSNs are so widely used as an identifier that it is impossible to function without one.46 While the stated purpose of webcam surveillance is to reduce discipline problems in classrooms and prevent disruptive behavior, the information can also be used against teachers for punitive purposes.47

Second, disclosures may occur due to inadequate safeguards. Any centralized database that does not reside on a completely stand-alone system is vulnerable to attack from unauthorized outside sources.48 Accidental disclosures of sensitive information are becoming more common.49 Also, purposeful abuses of centralized databases are common, and some models predict that 1% of organizations will be willing to sell or trade confidential information.50

Third the deterrent effect of webcams on disruptive behavior cannot be fully realized for two reasons. First, students will be unaware that they are being watched unless notices are posted to that effect.51 Studies show that unmonitored cameras are some of the least effective safety measures for preventing crime.52 Columbine had surveillance cameras in place prior to the school shooting, but they were largely unmonitored, and therefore did not deter the two shooters.53 Second, once students know where the cameras are placed, there is nothing to prevent them from taking their activities outside the camera's range. Even the former principal of a school that had a high-profile shooting death, who now works as a security consultant, does not believe that security cameras would have prevented the shootings that took place at his school.54

Finally, webcams could have a negative impact on teacher morale if they have to worry about constant observation. While the union contract of the Biloxi teachers does not address constant observation and evaluation, this behavior would violate the labor agreements of other teacher unions.55 Also, Biloxi administrators admit that there is the possibility that the webcam data could be used in teacher administrative and punitive actions.56 Currently parents, students and teachers need a court order to see the webcam data but that may change in the future and teachers will have to worry about increased complaints from parents who do not like their teaching styles or methods.57

V. CONCLUSION

Webcams appear to be an ideal safety measure on the surface because they are inexpensive and always in operation. The problem is that current law has not caught up with this new technology, creating legal uncertainties. These gray areas may lead to costly missteps as school districts across the country, without clear guidance from the courts, push the envelope on permissible activities. Webcams will gather information that is sensitive and nearly impossible to secure. Schools could be lulled into a false sense of security, especially if there are early successes in reducing crime. Also, as schools become less vigilant about other security measures such as metal detectors and identification badges, violent crime rates could actually increase. In addition, schools may unwittingly open themselves to liability if they fail to monitor the cameras. Students, given the reasonable expectation of safety that the courts have suggested cameras should provide, could sue and win if they were attacked in view of a camera and no one came to their aid.58 Finally, even if webcams are used as intended, they are not likely to deter most violent crime, something proven in school related tragedies on more than one occasion.

Dominique Braggs

FOOTNOTE

1. W. David Watkins & John S. Hooks, The Legal Aspects of School Violence: Balancing School Safety With Students' Rights, 69 Miss. L.J. 641, 713 nn. 1-6 (1999). See for concise list of fatal school incidents.

2. Greg Toppo, Troubling Days at U.S. Schools Spate of Violence Raises Alarm, USA Today Dl (Oct. 21, 2003). List of fatal school crimes since August 2003.

3. Ronald Susswein, The New Jersey School Search Policy Manual: Striking the Balance of Students' Rights of Privacy and Security After the Columbine Tragedy, 34 New. Eng. L. Rev. 527, 527-28 (2000).

4. Jill F. DeVoe et al., Indicators of School Crime and Safety 2002, U.S. Depts. of Educ. and Just. NCES 2003-009/NCJ 196753. Washington, D.C., viii (2002) (available at http//necs.ed.gov).

5. Id. at v. In 2000 students were twice as likely to be victims of violent crime away from school. From July 1998 to June 1999 there were 47 fatal incidents at school. This number includes Columbine.

6. Susswein, supra n. 3, at 563.

7. Alexander Volokh, A Brief Guide to School-Violence Prevention, 2 J.L. & Fam. Stud. 99, 104 (2000).

8. Kevin Reis, The Eavesdropping Society: Electronic Surveillance and Information Bmkering, (PLI) Order No. GO-OOM2, 627 at 636 (June 2001).

9. Id. at 636-37. (citing United States v. Torres, 751 F. 2d 875 (7th Cir. 1984)).

10. Id. at 637.

11. Id. at 685.

12. DeVoe, supra n. 4, at 136.

13. Reis, supra n. 11, at 680-81.

14. Id. at 681-82.

15. Id.

16. Id.

17. Using Webcams in School (England), (available at http://www.thegrid.org.uk/schoolweb/safety/webcams.shtml).

18. Id.

19. Sami Lais, Analysis: Will Wireless Tech Erode Privacy?, http://www.idg.net (Feb. 21, 2001).

20. Id.

21. Valerie Alvord, Webcam Helps Military Kids Ease Pain of Separation, USA Today A7 (Apr. 1, 2003).

22. Disa Sim, The Right to Solitude in the United States and Singapore: A Call for a Fundamental Reordering, 22 Loy. L.A. Ent. L.J., 443, 465 (2002).

23. 20 U.S.C. 5961 et seq. (1994).

24. Greg Toppo, Who's watching the class?; Webcams in schools raise privacy issue, USA Today D1 (Aug. 11, 2003).

25. Sam Dillion, Cameras Watching Students, Especially in Biloxi, New York Times (Sep. 24, 2003).

26. School Districts Install Cameras in Every Class, AP. Jackson, MS. (Aug. 13, 2003).

27. Toppo, supra n. 24.

28. Id.

29. Lance E. Rothenburg, Re-thinking Privacy: Peeping Toms, Video Voyeurs, and the Failure of Criminal Law to Recognize a Reasonable Expectation of Privacy in the Public Space, 49 Am. U. L. Rev. 1127, 1132 (2000). See Bd. of Ed. of Indep. Sch. Dist. v. Earls, 536 U.S. 822 (2002). (Discusses the line of US Supreme Court cases involving the Fourth Amendment to the United States Constitution and expectation of privacy in general and as it applies to students.)

30. Reis, supra, n. 8, at 637.

31. New Jersey v. T.L.O., 469 U.S. 325 (1985). (United States Supreme Court held that individualized warrantless search of a student's purse did not violate the Fourth Amendment because students had a lesser expectation of privacy than the public at large.)

32. 42 U.S.C.A. 1983 (West 1996). In order to establish liability of the school district for violating a constitutional right the individual must identify the policy that allowed the incident and also show that the policy was the force behind the violation.

33. DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 197 (1989).

34. Id. at 199-200.

35. Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198, 201 (5th Cir. 1994).

36. 80 F. Supp. 2d 1365, 1367-68. (9th Cir. 1993).

37. Id. at 1371-73.

38. Id.

39. 2000 WL 1611061 at 1 (E.D. Pa. Oct. 26, 2000).

40. Id. at 3-4. The Third Circuit has determined that liability under the "state-created danger" exception may attach where: (1) the harm ultimately caused was forseeable and fairly direct; (2) the state actor acted in willful disregard for the safety of the plaintiff; (3) there existed some relationship between the state and the plaintiff; (4) the state actors used their authority to create an opportunity that otherwise would not have existed for the third party's crime to occur. Kneipp v. Tedder, 95 F.3d 1199, 1208 (3rd Cir. 1996).

41. 37-3-83. School Safety Grant Program. The school board will adopt a comprehensive school safety plan and update it annually. The services available are metal detectors, video surveillance cameras, crisis management teams, violence prevention training, and school safety personnel. As part of the school safety program the Department of Education may study the feasibility of using video cameras to reduce discipline problems in the classroom, give teachers a tool to prove disruptive behavior, and enable teachers to review performance and get feedback.

42. Dillion, supra, n. 25.

43. Shaun B. Spencer, Security vs. Privacy: Reframing the Debate, 79 Denv. U. L. Rev. 519, 520 (2002).

44. Id.

45. Id.

46. Id.

47. Toppo, supra, n. 24.

48. Using Webcams in School, supra n. 17.

49. Patrick Thibodeau, FTC, Eli Lilly Settle Privacy Case, (available at http://www.computerworld.com/securitytopics/security/story/0,10801,67517,00.html) (Jan. 18, 2002).

50. Spencer, supra, n. 42.

51. Susswein, supra, n. 3. at 563.

52. Volokh, supra, n. 7. at 110.

53. Security Video May Hold Massacre Clues, (available at http://www.cnn.com/US/9904/23/school.shooting.02/index.html) (Apr. 23, 1999).

54. Toppo, supra, n. 24. Roy Balentine was the principal at Pearl High School in 1997. He now works for the security firm that installed the webcams in Biloxi classrooms.

55. Id.

56. Id.

57. Id. The policy in Biloxi may not be implemented in other areas.

58. Volokh, supra, n. 7. at 111.