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Abolish 4th Amendment dead zones, require warrants for cellphone searches in schools

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OCTOBER 25, 2023

While Fourth Amendment privacy rights have been curtailed in recent years, one area where courts do appear to take privacy seriously is with respect to cellphones. And yet, this wave of protections has not been offered to the group who relies on cellphones the most: school-age children. 

About 95% of teenagers have access to a smartphone, and many use them as diaries to store their most personal data and information. They also use social media and texting more often than other groups do, so cellphones effectively provide an intimate window into teenagers’ lives over a long period of time.

Although public school students and their property are technically protected by the Fourth Amendment, public schools often operate as Fourth Amendment dead zones: spaces where protections from unreasonable searches and seizures are severely limited or entirely diminished. In New Jersey v. T.L.O., the Supreme Court applied a relaxed standard for searches in the school setting, lowering the requirement from probable cause to reasonable suspicion. 

California is a global leader in artificial intelligence technology and the second-most diverse state in the nation with a diversity index of 69.7%, according to Wisevoter; prioritizing the protection of privacy rights within the state serves as a crucial initial step. This becomes even more imperative in the face of a rapidly evolving digital landscape.

The T.L.O. test uses the same concerning standard as Terry stops. Terry stops, which are brief detentions based on reasonable suspicion of criminal activity, are notorious for being utilized as a pretext for racial profiling. In 2020, California law enforcement stopped approximately 3 million drivers and pedestrians, nearly 60% of whom were Black or Hispanic individuals. 

This impact exists on school campuses, too. School officials often employ school resource officers, or SROs, who operate under the same relaxed Fourth Amendment standards during their employment as delineated by the Supreme Court in T.L.O. SROs are disproportionately placed in schools serving predominantly students of color, as opposed to schools serving predominantly white populations, burdening students of color with the highest cost of Fourth Amendment dead zones.

Given the searching authority permitted to school officials and SROs, many of California’s schools are using measures reminiscent of the carceral system. A potential solution comes in the form of a warrant requirement. A warrant requirement would provide an additional layer of protection for individual privacy by requiring that searches and seizures are authorized by a neutral party based on probable cause. This would make it more likely that searches and seizures are conducted without bias or arbitrary action, ensuring that students’ privacy rights are secured.

Furthermore, a warrant requirement would not hinder school safety objectives due to the preservation capacity of cellphones. Seizing and retaining a cellphone guarantees that the evidence is preserved to its fullest potential if and when presented in court. Even if a cellphone is used to break the law or school rules, digital evidence is less susceptible to destruction than physical evidence is, and obtaining a warrant will ensure a fair prosecution by preserving this evidence. Additionally, exceptions to the warrant requirement — such as the exigent circumstances exception — are better tools to address safety and evidence destruction concern.

To address concerns related to lengthy waiting periods for warrants, the use of electronic signatures and email delivery of warrants is a viable solution. Implementing this procedure across jurisdictions will help expedite the warrant process and reduce the time required to obtain or serve a warrant, thus protecting the rights of both California’s students and school officials.

Gov. Gavin Newsom should protect students from illegal school searches by enacting state policies that safeguard student privacy and limit the circumstances in which a search can occur. Newsom can work with the California State Legislature to pass a law that requires school officials to obtain a warrant before conducting cellphone searches. 

From there, the state Legislature can help develop training programs for school staff. These programs should ensure that staff members learn the legal requirement for cellphone searches, know the procedure for obtaining a warrant and understand the different exceptions to the warrant requirement — namely, what constitutes consent and which situations qualify as emergencies.

Our local government agencies, such as the Berkeley Unified School District Board of Education, should also provide additional protections for cellphone searches. In order for these agencies to authentically support movements for racial equity, such as the Black Lives Matter movement, it is critical that they champion a warrant requirement for cellphone searches. Although a warrant requirement for cellphone searches is not directly related to the goals of such movements, it is aligned with the broader concepts of addressing systemic racism and police brutality, protecting civil liberties and ensuring that people, including students, are not subjected to unconstitutional searches.

The time to act is now. If our state and local governments truly respect the fight for racial equity, they will extend its principles of advocating for fair treatment and justice to school settings, which invariably include vulnerable students.

Insia Zaidi is a third year law student at the UC Berkeley School of Law. She holds a master’s degree in urban education and formerly taught middle school math in Compton, California. She is also a DJ based in New York City. Contact the opinion desk at [email protected] or follow us on Twitter.

OCTOBER 26, 2023