High School Student Privacy Rights in the Age of Surveillance

Introduction: Privacy in the Age of Information

In the Age of Information, the issue of invasion of privacy continues to dominate the headlines. More and more people are becoming victims of identity theft — one of the major forms of privacy invasion — and personal information on virtually everyone in the world is available at the click of a mouse. In this environment, can anyone, especially high school students, reasonably expect any degree of privacy? High school students are not protected by many of the same constitutional guarantees as adults, yet their needs for privacy may be as great as, or greater than, those of their adult counterparts.

To determine what measure of privacy, if any, high school students can expect at home and at school today, this paper provides an overview of the issue of privacy, followed by an analysis of its various dimensions as they apply to this segment of the population. A discussion of current and future trends is followed by a summary of the research in the conclusion.

Background and Overview of Privacy as a Legal and Social Concept

In his essay "The Costs of Privacy," Kent Walker (2001) advises that "Privacy is both an individual and a social good. Still, the no-free-lunch principle holds true. Legislating privacy comes at a cost: more notices and forms, higher prices, fewer free services, less convenience, and, often, less security. More broadly, if less tangibly, laws regulating privacy chill the creation of beneficial collective goods and erode social values" (p. 87). Likewise, Jeffrey Rosen suggests that "privacy protects us from being misdefined and judged out of context in a world of short attention spans, a world in which information can easily be confused with knowledge" (p. 209).

Yet, while headlines are replete with reports concerning privacy issues and how they are playing out in the workplace and school, there are profound differences in what can reasonably be expected in terms of privacy from one society to the next. In the West, privacy assumes a more important role for many people than it does for their counterparts in the East, perhaps simply by virtue of the social emphasis on individuality in the former and the emphasis on the needs of the group in the latter. Nevertheless, people everywhere seem to agree that privacy is an important component of human existence.

This assumption was borne out by research conducted by Naz Kaya and Margaret J. Weber (2003), who found further differences even within Western nations regarding the reasonable expectation of privacy. "Although the desire for privacy varies from one situation to another," they note, "it appears that some cultures have a stronger preference for privacy and more privacy needs and gradients than others" (p. 79). Other researchers have characterized different cultures as "contact" and "non-contact" in their privacy expectations. According to Kaya and Weber, "The contact culture is composed of individuals (e.g., Mediterranean, Middle Eastern, Hispanic) who interact more closely with one another than individuals of the non-contact culture (e.g., Northern European, North American)" (p. 80). Therefore, students from contact cultures who prefer closer social interaction would have comparatively fewer privacy needs than their non-contact culture counterparts.

In an increasingly multicultural society, these different expectations of privacy can produce different reactions among different people. Despite these differences, all people need to be alone sometimes, and solitude in these cases should not be confused with isolation. According to James Q. Whitman, "In every corner of the Western world, writers proclaim 'privacy' as a supremely important human good, as a value somehow at the core of what makes life worth living. Without our privacy, we lose 'our very integrity as persons'" (p. 1151). A number of observers have agreed that privacy is fundamental to humanity's sense of personhood; further, it is widely recognized that individual privacy is being threatened by the evolution of contemporary society through innovations in telecommunications, surveillance, and increasingly intrusive methods of inquiry.

Whitman further observes that "Commentators paint this menace in very dark colors: Invasions of our privacy are said to portend a society of 'horror,' to 'injure [us] in [our] very humanity,' or even to threaten 'totalitarianism,' and the establishment of law protecting privacy is accordingly declared to be a matter of fundamental rights. It is the rare privacy advocate who resists citing Orwell when describing these dangers" (p. 1151). These fears are not unfounded. Today, many states, counties, localities, and federal agencies operate a variety of centralized "human services" data banks that manage client records in virtually permanent storage.

According to Trudy Hayden, Evan Hendricks, and Jack D. Novik's book Your Right to Privacy: A Basic Guide to Legal Rights in an Information Society (1990), "Police and other criminal justice officials can often obtain information from client records simply on request. Schools, employers, and landlords are sometimes told that a student, employee, or tenant is the client of a welfare or social services program. Records are often made available to researchers. So loose are the confidentiality regulations for most programs that these disclosures are perfectly legal. On the other hand, some programs maintain very strict confidentiality; for example, federally funded drug and alcohol abuse treatment programs generally protect client records even against a subpoena" (p. 57).

At the same time, advocates of maintaining existing privacy protections are forced to admit that the concept of privacy is exceedingly difficult to define. "[N]obody," writes Judith Jarvis Thomson, "seems to have any very clear idea what [it] is" (p. 37). Many authors acknowledge that privacy, fundamentally important though it may be, is a particularly elusive concept to articulate. "In particular," Whitman says, "the sense of what must be kept 'private,' of what must be hidden before the eyes of others, seems to differ strangely from society to society" (p. 1152).

There are some legal guidelines that help codify what adults in the United States can expect in terms of personal privacy. According to Black's Law Dictionary (1990), the "right to privacy" means "The right to be left alone; the right of a person to be free from unwarranted publicity; and the right to live without unwarranted interference by the public in matters with which the public is not necessarily concerned" (p. 1195). While everyone, adolescent and adult alike, shares some approximation of what "the right to privacy" means in daily life, there are four basic categories of privacy invasion that are actually actionable in U.S. courts today:

1. Appropriation. This term refers to the increasingly common crime of identity theft, or other circumstances wherein an individual's name or likeness is appropriated without permission.

2. Intrusion. This occurs when someone intrudes on another person's solitude or seclusion, or on an individual's residence.

3. Public disclosure of private facts. This type of privacy invasion involves unwanted publicity "of a highly objectionable kind" provided about someone. The information can even be true, but a cause of action may still exist if the individual involved is not a celebrity, politician, sports figure, or someone otherwise exempted from this component. According to Robert Lissit, there is a fine line between what is permitted to be publicly disclosed, and this line has become increasingly blurred in recent years, particularly as it applies to juveniles: "Whether it's a live telecast of bloodied teens carried from Columbine High School, a live feed of a man shooting himself on a California freeway, or a mother and son running from cameras after visiting a memorial for school shooting victims, there's a conflict between the public's right to know and the individual's right to privacy" (p. 98).

4. False light in the public eye. The final type of privacy invasion consists of publicity that places an individual in the "false light of the public eye" (Black's, p. 1195).

Certainly, most people cherish their privacy and will go to great lengths to protect it; however, privacy considerations for adults and adolescents vary in significant ways. In his essay "The Two Western Cultures of Privacy: Dignity versus Liberty," James Q. Whitman points out that, "Privacy advocates often like to claim that all modern societies feel the same intuitive need to protect privacy. Yet it is clear that intuitive sensibilities about privacy differ from society to society, even as between the closely kindred societies of the United States and continental Europe. Some of the differences involve questions of everyday behavior, such as whether or not one may appear nude in public. But many involve the law" (p. 1151).

These issues have assumed increasing importance in recent years. In her book Mind Your Own Business: The Battle for Personal Privacy, Gini Graham Scott (1995) reports that "from elementary school to college, school has become a privacy battleground, primarily in high school and university. Mainly, these conflicts have occurred on four main fronts: the effort to keep schools safe from crime and drugs; efforts to control, shape, or punish different types of student behavior; the school–media conflict over what the media can cover and publish; and the struggle over what a school can say when it is trying to terminate or has terminated a teacher or staff member" (p. 271).

The increasing surveillance in other areas of society, driven by concerns about crime and drugs, has been carried over into the country's high schools and colleges. According to Scott, "Like a microcosm of society, schools have been invaded by these same problems, resulting in the airport-like screening devices and police practices that have become a daily routine in many schools. In many communities, as widely reported in the news, even elementary schools now have check-in stops through which students have to pass, so they can be checked for weapons" (p. 271). If contraband is found, it is confiscated, and the student may be charged with a crime or suspended from school. In many high schools, school officials now conduct occasional locker checks for illegal drugs, stolen property, or other evidence of crime.

Like their adult counterparts in the workplace, student lockers represent a particular challenge for authorities seeking a balance between Fourth Amendment guarantees and the need to ensure safety. According to Darien A. McWhirter (1994), "By the end of the twentieth century both the police and average citizens have a good idea of what the Fourth Amendment does and does not protect. While some of the rules may seem silly to some people, they are not confusing. From searching automobiles to backpacks to houses, mistakes can no longer be laid at the door of the Supreme Court. Police officers who violate the rules have only themselves to blame if a guilty person goes free because constitutional rights were violated" (p. 144).

The same can also be said concerning the more general right to privacy as it applies to adults. Adults in the United States have the right to decide whom they will marry, whether they will have children, and whether their children will attend private school; women have a fundamental right to control their own bodies, including the right to decide to have an abortion, limited only by the right states enjoy to regulate the abortion process to serve legitimate governmental goals (McWhirter, 1994). By sharp contrast, these Fourth Amendment guarantees fade in significance when applied to a high school setting.

Barbara Dority (1997) reports that "Every day, public schools in America are becoming safer. Walk-through metal detectors have been in use in many inner-city schools for over a decade, while hand-held detectors and random weapons screenings are more popular on smaller, rural campuses. They're expensive, but they're thorough. And we want nothing but the best when it comes to the safety of our children" (p. 37). Under various circumstances, schools across the country are requiring students to submit to body searches. The Washington state chapter of the American Civil Liberties Union recently settled a case in which fifteen students were strip-searched by school personnel looking for a missing $100. Commented one of the students, "It felt like we were criminals. It was humiliating."

The war on drugs is being vigorously waged in the nation's public schools. An October 1996 story by the Associated Press reported that a thirteen-year-old honor student in Ohio was suspended for ten days from junior high school for accepting two Midol tablets from a classmate. The school's "zero tolerance" policy made no distinctions — prescription or nonprescription, legal or illegal. The student could reduce her suspension only by undergoing "drug screening" (initial cost $100; several subsequent "counseling" sessions at $90 each). She and the friend who gave her the tablets were ordered to undergo a "drug evaluation" or face expulsion (Dority, 1997, p. 38).

In a 1995 Supreme Court ruling permitting mandatory random drug testing of students participating in sports and other extracurricular activities, the Court specifically said that those who refuse testing can be barred from participation. Students in at least twenty-two states are required to submit or be excluded from many school activities. To some students this seems unjust, but as one parent of a star athlete at a Washington high school remarked, "We're supposed to prepare students for the world of work. On the door of Albertson's [food store] it says, 'We're going to drug test you before we hire you, so don't apply if you do drugs'" (Dority, 1997, p. 38).

Privacy and High School Students Today

High school is a unique place in society. Adolescents are at a crossroads in their physical, emotional, and sexual development, and virtually all high school students are in a hurry to grow up and join the adult world. In this rush to join adult ranks, high school students frequently exercise the same type of poor judgment that plagues all of humankind, though it is amplified in the young. This is why juvenile offenders are treated so differently in most criminal cases than their adult counterparts — although the line between adults and juveniles is becoming increasingly blurred. This uniqueness of situation also creates grey areas when it comes to determining how much and when the same privacy protections guaranteed to all American citizens apply to high school students.

According to Black's Law Dictionary (1990), "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside" (p. 244). By virtue of the Fourteenth Amendment, the Bill of Rights would naturally apply even to high school students — but it does not in its entirety. Where it is applied, high school students continue to occupy a sort of "quasi-citizenship" status that remains better described in the literature than it is defined in law. According to Rodney A. Smolla (1999):

"Under the rubric of substantive due process, U.S. constitutional law shelters certain aspects of privacy and autonomy from governmental interference. In the 20th century, the doctrine was once often invoked to strike down government legislation that interfered with property rights and entrepreneurial liberty, treating the Due Process Clause as the embodiment of laissez-faire economic theory. Justice Oliver Wendell Holmes and others rebelled from this constitutionalization of laissez-faire economics. This rebellion would ultimately prevail during the New Deal when the Supreme Court repudiated the invocation of substantive due process principles as a legitimate vehicle for overturning economic regulation. However, substantive due process theory has had considerably more staying power regarding the regulation of non-economic aspects of life and has been the principal doctrinal device for the protection of individual privacy." (p. 113)

As a result, substantive due process principles may be invoked to challenge infringements of certain fundamental rights on the theory that such rights are protected against most forms of governmental interference by the direct force of the Due Process Clause (Smolla, 1999).

The need to ensure student safety in an era characterized by increased violence and school shootings, drug dealing in the hallways, and electronic monitors at school doors has meant that high school students are effectively stripped of many constitutional rights when they step onto school property. Their basic rights to free speech, to assemble and discuss, to pray, to criticize school officials, and to generally engage in the same types of behaviors seen in any adult political setting are curtailed while on school grounds. According to Kaminer (1999), "The landmark 1969 Supreme Court decision Tinker v. Des Moines Independent Community School District upholding the right to wear a black armband to school to protest the Vietnam War has not been overruled, but its assertion that students do not leave their First Amendment rights at the schoolhouse door has not been honored either" (p. 11).

Given this dichotomy of treatment, there must be compelling reasons beyond student safety to justify regulating student newspapers or promulgating overly officious dress codes. From a privacy intrusion perspective, for example, high school students are at an inordinate risk for sexual harassment. In 1992, Strauss and Espeland studied sexual harassment in Minnesota high schools and observed that "many students say that sexual harassment is the norm in their schools. There have been numerous reports of sexual assaults and rapes on school grounds and in school buildings. In an environment that condones sexual harassment, everyone is a victim, not just those who are direct targets. All students come to see school as an unsafe place, hostile and intimidating. They may alter their own behaviors in an attempt to decrease their sense of vulnerability" (p. 7).

Conclusion

The research showed that high school students occupy a unique niche in society. Not quite adults and not quite children, high school students are increasingly being subjected to inordinate invasions of their rights to privacy in their schools. These invasions have taken the form of random locker searches, random urinalyses, surveillance cameras, metal detectors, and more. If these same techniques were applied to any but the most sensitive employment positions in the private or governmental sectors, adults would likely refuse to continue their employment. Yet, also by virtue of their lack of majority, high school students are compelled to stay in school until a certain age, and in many cases to remain in a specific school regardless of conditions.

Taken together, the trends are alarming enough; however, when they are combined with the new access granted to military recruiters to the nation's high schools, the trends assume even more troubling dimensions for high school students and their parents alike. High school students in America have always existed in the position they are in today — caught between the world of childhood and adulthood — and are increasingly being subjected to regulations affecting both worlds simultaneously.

While the courts have largely upheld these invasive initiatives to date, civil liberties, even for high school students, are a cherished part of the nation's legacy. Notwithstanding the PATRIOT Act and No Child Left Behind, American citizens will not stand still for long if they believe their privacy — and their children's privacy in particular — is being trampled in the name of a transient political goal.