A new state bill would facilitate easier access to student digital information in California schools.
Introduced by Ninth District Assemblymember Jim Cooper on January 13, 2017, California Assembly Bill (AB) 165 would allow employees of public, K-12 educational agencies to search electronic devices and digital information without a warrant if they have reasonable suspicion that students have violated school rules.
AB 165 was sponsored by the Association of California School Administrators (ACSA) and supported by the California Teachers’ Association.
Michael Ziegler, consultant to Assemblymember Cooper, said, “[Cooper] decided to carry [AB 165] based upon the merits of maintaining school safety, safety of staff and especially the safety of the most vulnerable students.”
However, opponents fear the bill will have the opposite effect, threatening student civil liberties and opening doors for administrative abuse.
Nicole Ozer is the Technology and Civil Liberties Policy Director for the American Civil Liberties Union of California (ACLU). According to Ozer, AB 165 would allow schools to revert back to the individual rules they used prior to the passage of the California Electronic Communications Privacy Act (CalECPA), which currently requires any California government entity to obtain a warrant before searching digital devices or demanding access to electronic information.
Ozer said, “[People acting on behalf of an educational agency] would no longer need outside oversight for searches, wouldn’t have to inform guardians, and would have no limitations on what information could be searched and how it could be shared.”
Ziegler disagreed, arguing that school authority pre-CalECPA was already sufficiently regulated to protect student rights.
Nevertheless, based on experience prior to the implementation of CalECPA protections, the ACLU lacks confidence that students’ rights would be protected if AB 165 moves forward.
Listing pre-CalECPA cell phone searches, Ozer said, “We’ve had examples of students being searched for not showing up to class, or being late to class, or laughing in class.”
In cases such as these, Ziegler argued that responsibility lies in the courts, not faulty legislation. He said that if school staff seize digital information without probable cause, they face legal prosecution.
Another ACLU concern is that the bill would facilitate invasive searches targeting vulnerable populations. Ozer said that there is nothing written in the bill to prevent information from being shared with others, including the federal government.
For people such as Academic Choice Advisory Council (ACAC) Secretary Donna Storey, the concept of information sharing with the presidential administration invokes fears under the current national political climate.
Recently, Storey wrote a letter to Assemblymember Cooper in which she expressed her belief that AB 165 could aid the persecution of students based on immigration status or religion.
She said, “It just feels like a very important thing that we safeguard our rights on the California level because we don’t know what’s happening on the national level.”
Ziegler said that the bill would help vulnerable students, contrary to opposition beliefs.
“There are no intentions of whole scale violations of anyone’s 4th Amendment rights,” he said. “We have many stories where the actual lives of students were saved, students who were bullied to a point of suicide just because they were different.”
The ACLU has declared AB 165 a threat to free speech and student activism. Ozer referred to a pre-ECPA scenario in which students took videos of police misconduct at school and were forced to turn in their cell phones so the videos could be deleted. Ziegler held that AB 165 would not enable such abuse because of a longstanding precedent that students may practice freedom of speech if it does not harm staff or other students.
Ziegler said it is too early to tell what other California lawmakers think of it but that legislators have acknowledged unintended consequences to CalECPA in the past.
At BHS, some students are trying to educate their peers about the perceived implications of AB 165.
Jane Hood, President of the Berkeley Youth and Government delegation, began circulating an opposition petition when she heard about the bill.
AB 165 is currently awaiting a hearing with the California Privacy and Consumer Protections Committee before next steps will be taken.