Student press rights threatened as schools seek unfettered access to cellphones

Capture a video of a lunch room brawl? Writing stories critical of the administration?

Under a measure before the California legislature, each of those actions could give a school teacher or administrator the right to search a student’s cellphone. AB 165 by Assemblymember Jim Cooper (D-Elk Grove) would eliminate protections against government searches of cellphones for any student at a public K through 12 school for the stated purpose of addressing cyber bullying.

The measure is an assault on student privacy rights, threatens to endanger a student journalists’ ability to gather and report news, and subjects students to potential discipline for failing to relinquish privacy and speech rights.

AB 165 seeks to dilute the strong protections for all California citizens, established by the California Electronic Communications Privacy Act, when a student steps onto a public school campus. The measure seeks to give schools across the state a wholesale exemption from Cal-ECPA, which requires a warrant for any government official to search a cellphone. Instead, a school administrator may search a student’s cellphone upon a reasonable suspicion that the phone holds information necessary for the school to investigate.

When the legislature passed SB 178 in 2015, CNPA sponsored the measure by then Sen. Mark Leno (D-San Francisco) to protect against the unwarranted intrusion into the cellphones and cloud storage of any person without a warrant.

But the measure discards the policy, outlined first by the United States Supreme Court in Riley v. California, that a person’s cellphone is different than a purse or a jacket pocket — it contains too great a glimpse into an individual’s life to warrant government intrusion without a duly issued warrant. California codified this rule with Cal-ECPA.

Additionally, student journalists in California have special First Amendment protections under Education Code 48950, which prohibits a school from taking action against a student exercising rights pursuant to the freedom of speech or of the press. CNPA and other organizations including the American Civil Liberties Union, are concerned that AB 165 endangers those protections, and would make a student who gathers newsworthy information subject to disciplinary action for refusing to permit inspection of unpublished information.

CNPA urges students and their advisors to consider editorializing in opposition to AB 165, which is scheduled to be heard by the Assembly Committee on Privacy and Consumer Protection on April 18.