Table of Contents
Preface xi
Acknowledgments xix
Part I State of the Law 1
Chapter 1 The Concept and Origins of Privacy Protection in the United States 5
Why Do We Care? 5
History of Privacy as a Legal Right 6
Modern Articulation of Privacy Concepts 8
Personally Identifiable Information 8
When "Anonymous" Doesn't Mean Anonymous 9
Fair Information Practices 10
Choice 13
The International Front 13
Bibliography 14
Chapter 2 Statutory Law Most Pertinent to the Educational Context 15
Federal Statutes 15
Family Educational Rights and Privacy Act (FERPA): Protecting Student Records 15
The Protection of Pupil Rights Amendment (PPRA): Gathering Student Information in Surveys 17
No Child Left Behind Act (NCLB): Undermining FERPA 18
Children's Online Privacy Protection Act (COPPA): An Attempt to Protect Children Online 19
COPPA and Educational Institutions 19
COPPA's Requirements 19
Electronic Communications Privacy Act (ECPA): A Few Pieces of the Electronic Privacy Protection Puzzle 20
USA PATRIOT Act Has Big Brother Arrived? 22
National Security Letters 24
Foreign Intelligence Surveillance Act Cowl Warrants 25
Amendments Allow Recipients to Object 26
Stare Statutes 26
Cyberbullying, Cyberstalking, and Cyberharassment 27
Library Records 27
The Privacy Torts 28
The Right of Publicity 29
Mandatory Reporting of Child Abuse 29
Privacy in Employment Law 29
Case Law and Other Areas 29
Bibliography 30
Chapter 3 Constitutional Law 31
Fourth Amendment: Reasonable Search and Seizure 32
First Amendment: Intertwined with Right of Privacy 35
Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969): The Supreme Court Affirms Student Right of Free Speech 36
Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986): The Constitutional Rights of Students Are Not Automatically Equivalent to Those of Adults 38
Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988): Schools May Censor Content of School-Sponsored Activities 38
Morse v. Frederick, 551 U.S. 393 (2007): Schools May Restrict Speech Reasonably Regarded as Encouraging Illegal Drug Use 40
The Intersection of First Amendment Rights and Privacy 40
Bibliography 43
Chapter 4 Liability under the Law 45
Tort 46
Who May Be Held Liable 46
Remedies 47
Violation of Constitutional Right 47
Who May Be Held Liable 47
Immunity 48
Remedies 49
Bibliography 49
Part II Applications in the Educational Setting 51
Chapter 5 Student Privacy in the Brick-and-Mortar World 55
Reasonable Searches in the Educational Context 55
Students Have a Reasonable Expectation of Privacy 55
The Standard 56
"Individualized" versus "Generalized" Searches 58
Applying the Standard 60
Searching Student Possessions 61
Student Expectation of Privacy in Belongings Stored on School Property 61
Searches of Student Dormitory Rooms 62
Searches of Students' Persons 62
Strip Searches 63
Physical Examinations and Testing 64
Searches of Groups of Students and Screening Searches 67
Generally 67
Surveillance and Recordings of Students 67
Drug Dogs 68
Drug Testing of Students Involved in Extracurricular Activities 69
"Seizures": Detaining Students for Questioning and Other Reasons 71
Involving Law Enforcement in School Searches and Seizures 72
Emergencies May Allow Disclosing Student Information 75
Bibliography 76
Chapter 6 Student Privacy Online 79
The Intersection of First and Fourth 80
Email, Social Media, and Cell Phones: Students Have a Reasonable Expectation of Privacy 80
The "Special Nature" of Cell Phones and Other Personal Electronic Devices 81
Off-Campus Activities 83
Integrating Social Media and Other Interactive Technology into the Curriculum 85
Collecting Student Data and Works 86
Bibliography 86
Chapter 7 Faculty and Staff Rights to Privacy 89
The Fourth Amendment and an Employer's Right to Search Employees' Things 89
Surveillance of the Workplace 91
Telephone Conversations 91
Recordings of Surveillance: Audio, No; Silent Video, Maybe 92
Physical and Psychological Testing 92
Drug Testing 93
Employee Rights in the Electronic World 94
Employee's Right to Privacy outside of the Work Environment 95
Bibliography 97
Part III Moving Forward 99
Chapter 8 Privacy Policies 101
Steps in Writing a Privacy Policy 103
Consider Who to Include in the Process 103
Identify the Areas to Be Addressed by the Policy; Specify Conditions 103
Review Current Policies and Consider Current and Past Practices 104
Content 104
Final Reviews 105
What to Do with Your Privacy Policy 105
General Tips for Writing a Privacy Policy 106
Bibliography 106
Chapter 9 Privacy in a Digital Future: Protecting Our Institutions and Our Students 107
Emerging Technologies and the State of Privacy Law 107
What Is a Reasonable Expectation of Privacy in the World of Evolving Technology? 107
What Standard Should Determine the Reasonableness of Fourth Amendment Searches and Seizures in a Digital World? 108
Emerging Technologies in the Education Context 109
The Cloud 109
Social Media 111
Location Tracking Technology 112
The Crystal Ball of Privacy Rights 113
Bibliography 113
Chapter 10 Quick and Dirty Answers 115
Glossary 125
Resources for Further Research 127
Index 131
