Judge Tells School to Stop Spying

PHILADELPHIA (CN) - A federal judge late Monday ordered a suburban school district not to activate "any and all Web cams embedded in laptop computers issued to students." The district had accused a sophomore of selling drugs because a snapshot taken remotely from the school-issued laptop showed him holding what looked like two pills. They were in fact Mike & Ikes, one of his favorite candies, said the boy's mother.

The class action came after a family claimed that an assistant principal told their son that the school district knew he "was engaged in improper behavior in his home, and cited as evidence a photograph from the Web cam embedded in minor plaintiff's personal laptop issued by the school district," according to the original complaint.

The boy's attorney said the assistant principal accused the Harriton High School sophomore of selling drugs, because the snapshot taken remotely from the school-issued laptop showed him holding what looked like two pills. The attorney said the boy was eating Mike & Ikes, one of his favorite candies.

U.S. District Judge Jan DuBois late Monday issued a Stipulation and Order signed by attorneys for the school district and the putative class.

The class claimed in its Feb. 11 federal filing that Lower Merion School District had spied on students and their families through the "indiscriminant use of and ability to remotely activate the webcams incorporated into each laptop issued to students," without the knowledge or consent of students or parents.

The school district last year issued 1,800 or more laptop computers to students at its two high schools.

Judge DuBois held the Monday hearing on the plaintiffs' motion for an emergency restraining order and permanent injunction.

Mark Haltzman, attorney for the lead plaintiffs, Harriton High School sophomore Blake Robbins and his family, filed the proposed restraining order on Friday.

Judge DuBois' order covered Haltzman's major concerns, and some issues raised by counsel for the school district in his filing Monday.

The order addressed five points of contention:

1. Lower Merion School District is prohibited from remotely activating any webcams embedded in laptop computers issued to students, or from remotely taking screenshots of the computers.

The school district told The Associated Press last week that school officials had turned on students' Web cams 42 times in the past 14 months. The school district said it did so to try to find missing computers, not to spy on students. After Courthouse News broke the story, the school district assured parents that it would stop remotely accessing the students' Web cams, but Haltzman sought the court order to be sure.

2. While the putative class action is pending, the district and its employees will not contact any students or families of students who have been issued a laptop computer about the issues in the complaint.

There are exceptions. The district may contact families about curricular and instructional matters, administrative matters not germane to the controversy, disciplinary matters, guidance counseling and report cards, so long as it is not related to issues connected with the lawsuit.

The district's lead counsel Henry Hockheimer Jr. said in court Monday that the school has been bombarded with questions about the case. Hockheimer said the school has a practice of providing parents and students with districtwide e-mail updates on matters of importance to the administration.

The updates, Hockheimer insisted Monday, are essential to Lower Merion School District's continuing function as a school district.

"These are taxpayers," he said, "and the school district wants to keep its constituency informed."

But Haltzman insisted in his motion on Friday and again in court on Monday that the school district is providing misleading information.

Haltzman said that the day after the story broke, "The school principal denied the allegations over the loudspeaker, and this was before any investigation had been done."

Judge DuBois ordered that if the school district wishes to provide an update on the pending action, a copy of any statement it issues must be provided with six hours advance notice to plaintiff's counsel, and shall be disseminated only with consent.

The school district is free to provide "new software, software updates, or other such releases for the students' laptops ... but only after receiving written consent ... from plaintiffs' counsel, to ensure that such new software, software updates or releases will not alter or destroy evidence that may be needed as part of the litigation."

Both parties must assess whether any software updates have that capability; if it is established that no harm can be done, then prior consent will not be needed.

Most of the courtroom wrangling on Monday was to address that issue.

The school district wanted to retain the ability to update district software and computers without restraint, citing concerns about viruses and other dangers. The class counsel was concerned that updates or other measures could result in spoliation of evidence.

"We don't even know for sure what software they are using," Haltzman said.

3. The school district will preserve all electronic data, images and other media pertinent to the case.

4. The school district may maintain its practice of "taking possession of laptops that are currently possessed by students with appropriate authorization only at the end of the school year or in the events of breakage or other technical failure," but the school district must work with forensic consultants on both sides of the litigation in doing so.

The parties must also cooperate with law enforcement authorities, the U.S. Department of Justice, the FBI or the Montgomery County District Attorney's Office with regard to preserving the data on those laptops.

5. Finally, the laptop in Blake Robbins' possession will be turned over to a third-party forensic consultant, and the hard drive will be imaged via a mutually agreed-upon procedure. That consultant will also retain possession of the device throughout the case.
Here is a link to Courthouse News' Feb. 18 story on the class action.

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