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Pa. school spying case: What's the law?

February 24, 2010 04:02 PM ET

A Philadelphia-area attorney who specializes in employer-employee law thinks the lawsuit might not be a slam-dunk for the Robbins family. "I don't think this is an open-and-shut case," said Stephen Foxman, a member -- analogous to a partner -- at Eckert Seamans Cherin & Mellott in Philadelphia. "There's definitely a problem from the standpoint of the school district. I can't see any reasonable basis for monitoring with real-time capture of video or audio outside of school hours. But the case does open up significant questions.

"Does the school district have the right, for example, to monitor what goes on with the laptops, at least during school hours?" Foxman asked. "That's what makes this potentially interesting."

Schools, said Foxman, are generally given legal leeway not afforded other organizations, such as a company, because they're acting in loco parentis, or "in the place of a parent."

"A parent who attaches a [monitoring] device to his or her child's computers to, for example, monitor that the child doesn't go to inappropriate [Internet] locations, you would not expect a claim from a child about that to move forward," said Foxman.

Other laws that may come into play are those related to employers' rights to monitor employees' use of company-provided hardware, including computers and smartphones, said Foxman. "There's a fair amount of law that has generally sided with employers monitoring employee communications," said Foxman. "Courts have generally given employers very, very broad leeway here."

Numerous readers of the stories that Computerworld has published about the Lower Merion case have wondered the same thing.

It may come down to the language in the agreement that students and their parents signed when they were issued the computers, and the fact that the district did not disclose that the MacBooks had been equipped with software that let school employees trigger the camera. "If they had disclosed, there wouldn't be an issue," said Foxman, taking the opposite side of the argument from the ACLU's Walczak.

Lower Merion School District's superintendent has admitted that students and parents were not informed about the spying feature, or the reasons why a laptop's camera might be activated.

"This case has brought into focus a broad set of issues," Foxman maintained. "It's brought into light a continuing problem, as electronic devices become more and more powerful, with more and more capabilities, there have to be lines drawn about their use."

It's becoming more difficult to defend monitoring by businesses -- or school districts -- that issue equipment to their workers or students. "There are some real issues here as these become Swiss Army knives," Foxman concluded. "They're not just used for business purposes, so monitoring can be a real invasion of privacy."

Lower Marion has 30 days to reply to the Robbins' complaint, according to a schedule set Monday by U.S. District Court Judge Jan DuBois.

Gregg Keizer covers Microsoft, security issues, Apple, Web browsers and general technology breaking news for Computerworld. Follow Gregg on Twitter at Twitter @gkeizer or subscribe to Gregg's RSS feed Keizer RSS. His e-mail address is gkeizer@ix.netcom.com.

Read more about Privacy in Computerworld's Privacy Topic Center.



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