Should Accused Student Cyberbullies Be Forced to Surrender Social Media Passwords?

By Rajendra Persaud*

In Illinois, school districts may have the power to obtain social media passwords from rule-breaking students.  In January 2015, the Triad Community Unit School District #2 sent a letter to students’ homes that indicated students may be asked to relinquish social media passwords under certain circumstances.[1]  While the limit of “certain circumstances” remains unclear, administrators have attempted to shed light on the matter by citing bullying as a primary concern for their authority.[2]  In response, State Representative Laura Fine assured the public that the bill would not allow schools to require that students hand over social media passwords.[3]  Is this statement a true reflection of the law, or did Representative Fine make the statement in a futile attempt to put the press at ease? Fine’s statement runs contrary to a plain text reading of the statute in question:

An elementary or secondary school must provide notification to the student and his or her parent or guardian that the elementary or secondary school may request or require a student to provide a password or other related account information in order to gain access to the student’s account or profile on a social networking website if the elementary or secondary school has reasonable cause to believe that the student’s account on a social networking website contains evidence that the student has violated a school disciplinary rule or policy.  The notification must be published in the elementary or secondary school’s disciplinary rules, policies, or handbook or communicated by similar means.[4]

While students have some constitutionally protected speech rights at school,[5] the extent of public school authority over acts beyond the classroom remains unclear.

In recent years, school administrative decisions have come under attack more frequently, and courts are displaying less deference to previously-sanctified school boards and employees.[6]  In accordance with this ongoing trend, a student should not have to surrender his or her password at the whim of a school administrative decision.  Adolescents are at varying stages of puberty and struggle to understand their emotions, hormones, judgment, and identity.[7]  Their physical immaturity makes them unable to appreciate the consequences of their actions the way that adults can. [8] While the Illinois law may help uncover information relating to suspected cyberbullying, sensitive information regarding a student’s personal health, well-being, and sexual orientation may become uncovered as well.  Embarrassment stemming from a false allegation or unexpected discovery has the potential to affect the psychological development of a wrongly accused individual.

Cyberbullying is defined as the “willful and repeated harm inflicted through the use of computers, cell phones, and other electronic devices.”[9]  First Amendment protections are rarely granted to “low value” categories of speech because this speech does not add or contribute to the marketplace of ideas;[10] rather, typical categories of low value speech intend to harm, offend, or cater to some prurient interest.  The words that constitute cyberbullying should be considered low value speech because they are “no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”[11]  Cyberbullying speech presents low value content because it is usually targeted at an individual for the purpose of inflicting psychological damage by means of embarrassment or harassment.  The proliferation of social media interactions amongst pre-teens and teenagers both inside and beyond the confines of the school presents serious issues that courts have not previously confronted.

Some critics of anti-cyberbullying legislation posit that since communications are transmitted remotely, no threat of serious harm can immediately manifest.  This is simply not true because members of Generation-Y must engage in social media interactions as part of that growing American culture.[12]  The communications may be transmitted remotely, but the effects are local.  For instance, a naked or embarrassing picture of an individual transmitted online can transcend virtual reality and translate into physical bullying or local harassment on school grounds.  While opponents to cyberbullying legislation continue to ignore the realities of cyberbullying by offering simple solutions[13] to a growingly complex issue, recent suicides resulting from cyberbullying illustrate just how serious the problem has become.[14]  While students have privacy interests, school administrators should have an alternative avenue for punishing cyber threats[15] that affect other individuals.  Schools that do nothing in response to reports of cyberbullying risk failing to protect a victimized student, and may also suffer a lawsuit initiated by the student’s parents.[16]  It is critical for schools to respond to cyber threats in a timely manner because deference to a school’s decision has eroded over time.  Under the time-honored doctrine in loco parentis, courts were previously reluctant to review school decisions, as the student was considered a child under the jurisdiction of the school, which was essentially the parent in the absence of the child’s true parent or guardian.[17]  This has changed as suits against schools have increased and the rights of individual students have expanded.

Cyberbullying has resulted in an alarming number of suicides since it has been taken seriously as a form of antisocial behavior.  School bullying includes physical, verbal, psychological, or intimidatory elements intended to cause fear, distress, or harm to the victim.[18]  Cyberbullying ranges from sending vulgar language online to breaking into someone’s social media account to impersonate them, and even to sinisterly tricking someone into revealing sensitive information for the purpose of sharing that information with others.[19]  Like gang attacks, cyberbullying can be an intensified version of school bullying because multiple individuals can engage in an attack on the same victim at the same time without provocation and from remote locations.  Humiliating pictures, whether altered or authentic, can be seamlessly generated and disseminated to both local classmates and unknown observers without notice to the victim.  Once the content is released, these pictures and videos can be impossible to erase if users download the content and transfer the media to remote data storage devices, like external hard-drives or thumb drives.[20]  Forty-three percent of teens have been victims of cyberbullying in the last year.[21]  A recent study found victims of cyberbullying to be nearly twice as likely to have attempted suicide compared to peers who did not experience cyberbullying.[22]  There is evidence that most individuals who attempt suicide do not unequivocally want to die,[23] which justifies at least minimal interference by schools.[24]

A court reviewing the subject Illinois law would typically apply intermediate scrutiny to the punishment of student speech; under this standard, the court upholds the law only if it advances some important government interest and is reasonably well-tailored to serve that interest.[25]  Ultimately, courts will be tasked with a difficult policy balancing test: the judiciary must weigh a student’s right to speech and privacy against the school’s duty to protect students from bullying and associated harms.

Illinois Public Act 098-0129, §15 would likely fail intermediate scrutiny because forcing a student to relinquish social media passwords is not a well-tailored punishment to discourage cyberbullying or vindicate the bullied victim.  The law does little to curb cyberbullying.  For instance, a student that relinquishes a social media password can easily deactivate or terminate the account in question.  From there, the same student can use similar if not completely replicated information to spawn a new account.  A student could also delete his or her account before relinquishing a social media password.  Alternatively, the account could be deleted before a school administrator has the opportunity to probe for illicit activity.

In light of the disconnect between adults’ understanding of social media and their children’s ability to harness technology to serve various ends,[26] schools should be able to narrowly censor hate speech targeted at an individual for the purpose of demeaning that individual.  Providing a school administrator with the tools to uncover what activity an individual is engaging in online could lead to discovering other antisocial behavior or the proliferation of attacks on other students by the same individual, especially since some students spend more meaningful quality time with their peers at school than with their families at home.[27]  School administrators should have more control over policing the activities of their students due to the amount of time and influence a child’s peers has on him or her while outside of the parents’ supervision.

Although the topics underlying hate speech likely garner unanimous admonishment—degradation via sexual orientation, gender, socioeconomic status, intelligence, race, or national origin—defining exactly what types of statements are worthy of denunciation places school teachers and administrators in a position of judging speech beyond the context of the original conversation, and without knowledge of the parties’ previous interactions.  This triggers despotic notions regarding the power of school disciplinarians.  Speech differs wildly from generation to generation.[28]  What might be an acceptable phase or use of slang for a millennial could be considered vulgar by a member of Generation X.[29]

As Judge Posner noted in American Amusement Mach. Ass’n v. Kendrick, children have First Amendment rights because people are unlikely to become well-functioning, independent-minded adults and responsible citizens if they are raised in an intellectual bubble.[30]  Curtailing students’ speech by forcing them to surrender their social media passwords places them at a social disadvantage and could stunt their social growth.  To say that an individual can merely turn off his or her computer ignores the reality that using computers nowadays is a natural part of social interactions[31] in the way members of Generation X interacted on school playgrounds.  Illinois Public Act 098-0129, §15 is a superficial attempt to rectify the cyberbullying problem without addressing why a student is bullying in the first place.

Obtaining access to an individual’s Facebook page does not solve the cyberbullying problem.  Rather, it adds to the issue by neglecting to address the causes and effects of cyberbullying.  The technologies, mediums, and platforms are not at fault for allowing the spread of offending student messages; it is the messages themselves that must be addressed:

The tendency is to believe that if we control technologies, negative student comments and attitudes will go away.  We cannot snuff out the attitudes that inform the expression.  To make cyber-bullying go away, we need to educate young people and engage in dialogue that helps them arrive at their own conclusions about what ethical expression ought to comprise.[32]

What methods of recourse does a school have?  To survive intermediate scrutiny review, the procedure does not necessarily have to be the least restrictive means, but the school should consider less invasive punishments.[33]  For instance, threatening to memorialize the incident in the individual’s permanent file might have a profound effect on the bullying student if that individual seeks to pursue higher education. Or, the school can warn that criminal charges are possible.[34]  Alternatively, the school could mandate a mediation session between the bully and victim to assist both students in individualizing and recognizing the other.  The school should pursue a method that avoids alienating the bullying student because antisocial behavior could be a warning sign of something potentially more serious in the future.  Students that misbehave are often students with academic difficulties,[35] so ignoring this fact could mask the true root of the problem.  If a school cannot protect a student from cyberbullying, parents might file a lawsuit on behalf of the minor child.  Civil remedies provide causes of action that may be triggered by a bully’s harassment; legal action against the aggressor can include an action in defamation, invasion of privacy, a public disclosure of a private fact, invasion of personal privacy, and intentional infliction of emotional distress.[36]

Another alternative is to compel empathy from the bullying student.  The bullying student could be presented with the opportunity to choose presenting in a seminar, or suspension from school and a mark in the student’s permanent file.  The seminar option could involve the bully and the victim with several other classmates and teachers or administrators in a controlled atmosphere.  The aggressor and victim reenact the social media interactions with pauses at predetermined intervals for comment and reflection.  Young children have fewer coping mechanisms than adults, which forces them to internalize expressed sentiments, thereby illustrating the notion that they are susceptible to the effects words have.[37]  It is possible that a cyberbully has never been bullied before, or has failed to consider the effect his or her words have on the victim.

Schools must find ways to balance the privacy interests of students with the need to protect schoolchildren who are vulnerable and susceptible to bullying.  While forcing a student to provide his or her social media password is beyond the scope of a school official’s authority, alternative solutions that recognize students’ privacy exist to discourage cyberbullying. Schoolchildren have diminished privacy rights, but this does not mean that they have no rights whatsoever.[38]  The problem should focus on the message and its speaker, rather than the platform by which these messages are communicated.

 


*Rajendra Persaud is in his final year as a student at Hofstra School of Law. He can be reached at rpersa13@pride.hofstra.edu.

[1] Jason Koebler, Illinois Says Rule-Breaking Students Must Give Teachers Their Facebook Passwords, MOTHERBOARD (Jan. 20, 2015, 5:45 PM), http://motherboard.vice.com/read/illinois-says-students-have-to-give-up-facebook-passwords-or-face-prosecution.

[2] Hunter Schwarz, Schools Can Require Students to Hand Over Their Social Media Passwords Under Illinois Law, WASH. POST (Jan. 22, 2015), http://www.washingtonpost.com/blogs/govbeat/wp/2015/01/22/schools-can-require-students-to-hand-over-their-social-media-passwords-under-illinois-law.

[3] Alexandra Svokos, Illinois Is Not Actually Requiring Students to Hand Over Their Facebook Passwords, HUFFINGTON POST (Jan. 23, 2015, 6:28 PM), http://www.huffingtonpost.com/2015/01/23/illinois-law-facebook-passwords_n_6534450.html.

[4] Illinois Public Act 098-0129, § 15, available at http://www.ilga.gov/legislation/publicacts/fulltext.asp?Name=098-0129 (emphasis added).

[5] Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 505 (1969) (“First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”); see Karly Zande, When the School Bully Attacks in the Living Room: Using Tinker to Regulate Off-Campus Student Cyberbullying, 13 BARRY L. REV. 103, 113 (2009) (summarizing Supreme Court authority on freedom of speech in schools).

[6] Robert E. Phay, Suspension and Expulsion of Public School Students (1971) (on file with the Nat’l Org. on Legal Problems), available at http://0-files.eric.ed.gov.opac.msmc.edu/fulltext/ED048672.pdf.

[7] Nicole P. Grant, Mean Girls and Boys: The Intersection of Cyberbullying and Privacy Law and Its Social-Political Implications, 56 HOW. L.J. 169, 197-98 (2012) (“Why is this anonymity so important? … [P]rivacy rights help individuals maintain autonomy and pursue their own individuality. Anonymity only furthers individuality by allowing people to become involved in things that they would not necessarily be able to be a part of if they were required to share their identities.”).

[8] ABA JUVENILE JUSTICE CENTER, CRUEL AND UNUSUAL PUNISHMENT: THE JUVENILE DEATH PENALTY: ADOLESCENCE, BRAIN DEVELOPMENT, AND LEGAL CULPABILITY, (Jan. 2004), available at http://www.americanbar.org/content/dam/aba/publishing/criminal_justice_section_newsletter/crimjust_juvjus_Adolescence.authcheckdam.pdf.

[9] Elizabeth M. Jaffe, Cyberbullies Beware: Reconsidering Vosburg v. Putney in the Internet Age, 5 CHARLESTON L. REV. 379, 380-81 (2011).

[10] Genevieve Lakier, The Invention of Low-Value Speech, HARV. L. REV. __, (forthcoming 2015) (manuscript at 8), available at http://weblaw.usc.edu/who/faculty/workshops/documents/LakierUSCdraft.pdf.

[11] Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942).

[12] Ruth N. Bolton, Understanding Generation Y and Their Use of Social Media: a Review and Research Agenda, 24 (3) J. SERV. MGMT. 245 (2013) (“[Generation Y is] the first generation to have spent their entire lives in the digital environment; information technology profoundly affects how they live and work.”), available at https://dspace.lboro.ac.uk/dspace-jspui/bitstream/2134/13896/3/Understanding%20Generation%20Y%20and%20Their%20Use%20of%20Social%20Media_A%20Review%20and%20Research%20Agenda.pdf.

[13] Dan Seitz, Cyberbullying Is Not The Same Thing As Real World Bullying, Okay?, UPROXX (June 13, 2012), http://uproxx.com/webculture/2012/06/cyberbullying-is-not-the-same-thing-as-real-world-bullying-okay/2.

[14] Sameer Hinduja & Justin W. Patchin, Cyberbullying Research Summary: Cyberbullying and Suicide (2010) (on file with the Cyberbullying Research Ctr.), available at http://www.cyberbullying.us/cyberbullying_and_suicide_research_fact_sheet.pdf.

[15] United States v. Kelner, 534 F.2d 1020, 1027 (2d Cir. 1976) (defining threats as “unequivocal, unconditional and specific expressions of intention immediately to inflict injury”).

[16] Katherine Bindley, New Jersey Student Sues School Districts over Alleged Bullying, HUFFINGTON POST (Mar. 18, 2013), http://www.huffingtonpost.com/2013/03/18/new-jersey-student-sues-school-bullying_n_2901661.html; Elisa Jaffe, Bullied Teen Sues Enumclaw School District for $1.2M, KOMONEWS (Oct. 15, 2014) http://www.komonews.com/news/local/Sophmore-Sues-Enumclaw-Schools-For-12-Million-279367052.html; Stacey Sager, Bullied Teen Wins Settlement Against Farmingdale School District, 7ONLINE (Jan. 21, 2015), http://7online.com/education/bullied-teen-wins-settlement-against-farmingdale-school-district/485018.

[17] Phay, supra note 7, at 3.

[18] David P. Farrington & Maria M. Ttofi, School-Based Programs to Reduce Bullying and
Victimization 7 (October 31, 2009) (on file with the Campbell Collaboration Crime & Justice Grp.), available at https://www.ncjrs.gov/pdffiles1/nij/grants/229377.pdf.

[19] See Brian P. Stern & Thomas Evans, Cyberbullying: an Age Old Problem, a New Generation, 59, 5 R.I. Bar J. 1, 21 (2011), available at https://www.ribar.com/UserFiles/Mar-Apr_2011%20Jrnl%281%29.pdf (discussing cyberbullying as a form of harassment); see also Ted Feinberg, & Nicole Robey, Cyerbullying: Intervention and Prevention Strategies (2010) (on file with the Nat’l Ass’n of Sch. Psychologists), available at http://www.nasponline.org/resources/bullying/Cyberbullying.pdf (detailing types of cyberbullying).

[20] What is Cyberbullying?, STOPBULLYING.GOV, http://www.stopbullying.gov/cyberbullying/what-is-it (last visited Apr. 3, 2015).

[21] Stop Cyberbullying Before It Starts (on file with the Nat’l Crime Prevention Council), available at http://www.ncpc.org/resources/files/pdf/bullying/cyberbullying.pdf (last visited Apr. 3, 2015).

[22] Hinduja & Patchin, supra note 14; see also Liam Hackett, The Annual Cyberbullying Survey 2013, DITCH THE LABEL, available at http://www.ditchthelabel.org/downloads/the-annual-cyberbullying-survey-2013.pdf (last visited Feb. 24, 2015) (reporting that in a survey of over 10,000 young people surveyed, seven in ten are victims of cyberbullying).

[23] Alex Lickerman, The Six Reasons People Attempt Suicide, PSYCHOLOGY TODAY (Apr. 29, 2010), https://www.psychologytoday.com/blog/happiness-in-world/201004/the-six-reasons-people-attempt-suicide; see PAUL R. ROBBINS, ADOLESCENT SUICIDE 48-49 (1998) (analyzing suicide among adolescents in the United States); EDWIN SHNEIDMAN, SUICIDE AS PSYCHACHE: A CLINICAL APPROACH TO SELF-DESTRUCTIVE BEHAVIOR 12-13 (1993) (“Suicide may be said to be an interpersonal and certainly an intracultural event. But in its essence suicide is always an individual occurrence.”).

[24] KENT S. MILLER, MANAGING MADNESS: THE CASE AGAINST CIVIL COMMITMENT 74 (1976).

[25] Ashutosh Bhagwat, The Test That Ate Everything: Intermediate Scrutiny in First Amendment Jurisprudence, 2007 U. ILL. L. REV. 783, 801 (2007).

[26] See generally CATHERINE STEINER-ADAIR & THERESA H. BARKER, THE BIG DISCONNECT: PROTECTING CHILDHOOD AND FAMILY RELATIONSHIPS IN THE DIGITAL AGE (2013).

[27] NAT’L RESEARCH COUNCIL & INST. OF MED., RISKS AND OPPORTUNITIES: SYNTHESIS OF STUDIES ON ADOLESCENCE 12-17 (Michele D. Kipke, ed., 1999), available at http://www.nap.edu/openbook.php?record_id=9721&page=18.

[28] Michael W. Stockham, Slang, Generation Gaps, and Deciding What is Defamatory (2005) (on file with Thompson & Knight), available at http://www.tklaw.com/files/Publication/98bbe187-5b51-4ccc-b69b-622e5b993267/Presentation/PublicationAttachment/e649f554-ba03-472c-a208-a9a3f1d7fd07/Slang,%20Generation%20Gaps.pdf.

[29] See, e.g., STEFAN H. KRIEGER & RICHARD K. NEUMANN, JR., ESSENTIAL LAWYERING SKILLS 94 (4th ed. 2011) (“O.K.” can mean two different things. It can be a throwaway transition word, and it can mean “That’s good.”).

[30] Am. Amusement Mach. Ass’n v. Kendrick, 244 F.3d 572, 577 (7th Cir. 2001).

[31] Bolton, supra, note 12.

[32] SHAHEEN SHARIFF, CONFRONTING CYBER-BULLYING 61 (2009).

[33] See generally James F. Ianelli, Punishment and Student Speech: Straining the Reach of the First Amendment, 33 HARV. J.L. & PUB. POL’Y 885 (2010) (assessing the relationship of the First Amendment to punishing student speech).

[34] S. Cal Rose, From LOL to Three Months in Jail: Examining the Validity and Constitutional Boundaries of the Arkansas Cyberbullying Act of 2011, 65 ARK. L. REV. 1001, 1010 (2012).

[35] Robert E. Phay & Jasper L. Cummings, Jr., Student Suspensions and Expulsions: Proposed School Board Codes 8 (1970) (on file with the Inst. of Gov’t, University of North Carolina at Chapel Hill), available at http://files.eric.ed.gov/fulltext/ED047399.pdf.

[36] Nancy Willard, Educator’s Guide to Cyberbullying and Cyberthreats, (2007) (on file with the Ctr. for Safe and Responsible Use of the Internet), available at https://education.ohio.gov/getattachment/Topics/Other-Resources/School-Safety/Safe-and-Supportive-Learning/Anti-Harassment-Intimidation-and-Bullying-Resource/Educator-s-Guide-Cyber-Safety.pdf.aspx.

[37] KEVIN W. SAUNDERS, DEGRADATION: WHAT THE HISTORY OF OBSCENITY TELLS US ABOUT HATE SPEECH 167 (2011).

[38] New Jersey v. T.L.O., 469 U.S. 325, 339 (1985) (“[S]choolchildren may find it necessary to carry with them a variety of legitimate, noncontraband items, and there is no reason to conclude that they have necessarily waived all rights to privacy in such items merely by bringing them onto school grounds.”).