Rights Groups Block School Cellphone Search Bill

SACRAMENTO (CN) – Hampered by widespread resistance from civil rights groups, backers of a bill that would allow California teachers and principals to search students’ cellphones pulled their proposal Wednesday.

Brought by the Association of California School Administrators, Assembly Bill 165 seeks to exempt students from recently enacted digital privacy protections against warrantless cellphone and electronic device searches. Critics warned the bill could “sledgehammer” the Fourth Amendment and open up millions of K-12 students to unfettered school and government searches.

“This bill has massive ramifications to the privacy of 6 million students and families,” said Nicole Ozer, of the American Civil Liberties Union of California.

While short in length, the bill has stature. Its 130 words would exempt students from the California Electronic Communications Privacy Act, CalECPA, which was passed in 2015 with overwhelming bipartisan support in the Legislature.

“That law also specifies the conditions under which a government entity may access electronic device information by means of physical interaction or electronic communication with the device, such as pursuant to a search warrant, wiretap order, or consent of the owner of the device,” the new bill states.

Unable to soothe powerful opposition led by the ACLU and daunted by the prospect of presenting the bill to an unfamiliar Assembly privacy committee, the school administrators are going back to the drawing board.

“We’re making it a two-year bill, which means it’s not going to be heard next week. But the conversations are going to continue,” said Laura Preston, lobbyist for the school administrators.

Preston said the school administrators and author Assemblyman Jim Cooper, D-Elk Grove, were “stunned” by the reaction from the 55-member coalition that has united against the legislation. The coalition includes the ACLU, the Center for Media Justice, the First Amendment Coalition and the Council on American-Islamic Relations.

Supporters say CalECPA should not apply to educators and that AB 165 seeks only to clarify school disciplinary measures that existed before 2016 — rules meant to keep students safe, not invade their privacy.

“We introduced the bill to try and pull schools out of CalECPA, and you might as well have thought that we started World War III,” Preston said of the reaction.

CalECPA was hailed by wired.com in 2015 as the “nation’s best digital privacy law.” It requires law enforcement agencies to obtain a warrant before tracking or accessing a person’s cellphone or electronic device. It also prevents government agencies from forcing businesses or communications providers to turn over digital data stored in the cloud, without a court order.

California’s most powerful civil rights groups and Silicon Valley giants such as Facebook and Google backed CalECPA and the landmark bill cleared its final legislative hurdle by a 34-4 margin. Supporters applauded state lawmakers for extending Fourth Amendment protections to digital communications.

California’s digital privacy law was introduced after the U.S. Supreme Court unanimously held in 2014 that police need a warrant to search information on an arrestee’s cellphone.

“Once an officer has secured a phone and eliminated any potential physical threats, however, data on the phone can endanger no one,” wrote Chief Justice John Roberts.

One of the few holdouts was AB 165 author and former member of the Sacramento County Sheriff’s Department Jim Cooper. He testified that the bill would hamper law enforcement’s ability to recover evidence.

“SB 178 is a one-size-fits-all bill that weakens the ability of law enforcement to effectively investigate child exploitation networks and secure evidence,” Cooper testified in September 2015 before voting against the bill.

Cooper’s office did not return phone calls or emails regarding AB 165.

The opponents claim Cooper’s latest proposal could have far-reaching consequences for California students and their families, particularly children of immigrants. They worry that teachers could search a student’s phone and turn over confidential communications to law enforcement or immigration enforcement officials.

“I just wish I understood what problems they are really trying to solve,” said Lee Tien, Electronic Frontier Foundation staff attorney.

Tien said the school administrators are struggling to adapt to the new standards that require probable cause to search students’ belongings, not just reasonable suspicion.

“If you care about privacy, then CalECPA is one of the best things since sliced bread,” Tien said. “Why would anybody want to amputate protection of privacy of students, parents and teachers that work in the school system?”

While the bill’s proponents say they will pull it before Tuesday’s committee hearing, they hope to get something through the Legislature later this year.

Regardless of the opposition’s “fear-based” rhetoric, Preston said, AB 165 has no connection to immigration or unreasonable searches and administrators are willing to negotiate amendments. She said that CalECPA was crafted without educators in mind.

“The dilemma for us is this: If you take CalECPA to the letter of the law, we have to have a warrant in order to access electronic devices, but the types of things that we’re accessing don’t allow us to get a warrant. So what do we do when a student doesn’t volunteer his phone?” Preston said.

Since CalECPA was enacted, students have been refusing to hand over their cellphones to teachers and administrators, Preston said. She said teachers usually want access to cellphones to prevent cyberbullying and cheating on tests, not to delve into social media or text messages for criminal content.