Coverage Pointers - Volume X, No. 20a

Untitled Document

By Paul J. Suozzi

Hurwitz & Fine, P.C.
Buffalo, New York
Tel: 716-849-8900
Fax: 716-855-0874
[email protected]


The expanse of the internet presents users with enormous opportunities and great challenges. It creates opportunities to exchange ideas at rapidly increasing rates and brings different cultures into the classroom, but also lays traps for the unwary. The advancing march of the internet now has almost 1.5 billion users worldwide and has increased by over 300 percent in less than a decade. Approximately one in seven youths experiences a sexual solicitation or approach while online. The internet permits children to explore ideas with the click of a button. Lamentably, some get wrapped into a small world, where their peers assault them from behind the anonymity of a computer screen and, even worse, where they are susceptible to strangers.
This situation presents incredible challenges to parents, educators and internet providers. Social networking sites like MySpace, Facebook and Friendster make the traditional borders of schools more ambiguous. However, the courts have consistently ruled that the Communications Decency Act (Good Samaritan Act) provides immunity from tort liability for internet providers and users of “interactive computer services.” The policy underlying this act is that holding internet providers and users of “interactive computer services,” (like schools) liable for what other users publish would have a crippling effect on the potential benefits of the internet. Potential liability would place an inordinate burden on the providers to monitor user content.  While no case has applied the “Good Samaritan” immunity in a school network setting, several courts have interpreted the provision to limit tort liability of major online service providers for defamatory and negligent bulletin board postings.
An individual sued America Online, Inc. for failing to remove defamatory messages posted by an identified third party, refusing to post retractions of those messages, and failing to screen for similar postings after being made aware of the defamatory nature of the messages. The U.S. Court of Appeals dismissed the claims, noting that “Congress recognized the threat that tort-based lawsuits posed to freedom of speech in the new and burgeoning internet medium.” Where the mother of an underage MySpace user brought an action against MySpace after the minor was sexually assaulted by a man she met through the site, a court found that the immunity barred the defamation claims as well as any other claims attempting to hold the site liable for its publication of third party content and any harm flowing from that content.
A more recent decision confirms the “near-unanimous” case law supporting the immunity of interactive computer services. An 18 year old male registered for and was later arrested and charged with three counts of unlawful sexual conduct with a minor. The court found that the site was not liable where it explicitly stated that it could not verify the age of its users. Commentators contend that Section 230 of the Communications Decency Act “effectively grants social-networking websites blanket immunity against all negligence claims.” However, it can be expected that the courts and legislatures will attempt to “implement security measures given the forseeability that minors using [a social networking site] would be targeted by sexual predators,” especially when the sites themselves are targeting increasingly younger audiences like
Congress has enacted statutes that attempt to block minors from accessing pornographic material. The Children’s Internet Protection Act (CIPA) requires schools that receive federal funding to provide filters on students’ internet usage to prevent them from viewing obscene and pornographic materials. A failure to do so does not result in tort liability, but may cause the loss of federal funding. Further, Congress passed the Keeping the Internet Devoid of Sexual Predators Act of 2008 (KIDS) which requires sex offenders to provide their MySpace, Facebook, et al, user names and email addresses to the National Sex Offender Registry. Recently, MySpace deleted over 90,000 users who were registered sex offenders in response to a subpoena from the Connecticut and North Carolina attorneys general. 
While the First Amendment provides that government entities may not abridge an individual’s freedom of speech, a student’s right to free speech is more restrictive, depending upon on their level of schooling, the kind of school attended and the type of speech. Schools have discretion in limiting speech: when the school reasonably believes there will be a substantial disruption of school activities; when on-campus student speech is inconsistent with the school district’s basic educational mission; in exercising editorial control over the style and content of student speech in school sponsored activities; and where speech constitutes a “true threat.” This standard applies to cyber speech; and there is a much greater probability that what was traditionally considered “off-campus” speech is now “on-campus” speech because the speech is easily accessible and can be widely circulated through the internet, leading to potentially greater student disruption.
Location is the primary factor in determining whether the school can restrict speech. A school need not tolerate on-campus student speech that is inconsistent with its “basic educational mission” even though the government could not censor similar speech outside the school zone. Generally, if the speech takes place off-campus, it will usually lack a sufficient nexus to the school to permit regulation. However, cyber speech occurs where it is received, not where it was transmitted. Therefore, courts focus on where the cyber speech or website is accessed rather than where it was created. If a student accesses the content on school premises, it is considered campus speech and a school may regulate it.
Factors to consider in deciding whether cyber speech is “on-campus” are: whether the student used school resources in creating a web page or sending emails; whether the expression caused disruption at school; whether the web page was accessed from school or discussed at school; or whether it was aimed at a particular school audience rather than a random audience. Speech was considered “off campus” where a student compiled a “Top Ten” list of statements about the school’s athletic director at home and emailed it to other students, but it was not sent directly to the school. The suspension of the student was deemed improper because the student had nothing to do with the list’s appearance at the school and there was no evidence of substantial disruption to school activity or interference with the rights of other students. Contrarily, a student’s expulsion was upheld where the student created an internet website containing threatening comments and pictures about his principal and one of his teachers; including the solicitation of funds from visitors for the assassination of the teacher. The Court held that while the site was created “off-campus,” it was aimed at a specific group of students and it was foreseeable that the content would pass from students to teachers, inspiring the circulation of the web page on school property.
Courts examine the significance of school disruption that occurs from the communication. Where a student, using a home computer, created a parody profile on MySpace of the high school principal, the suspension was upheld because the website caused substantial disruption on school premises. In New York, an 8th grade student’s suspension was upheld after he sent an Instant Messaging icon that suggested a named teacher should be shot and killed. The icon was transmitted from his home computer to fifteen friends, some of whom attended the same school.  The court held that even if it could be viewed as protected speech, it constitutes student conduct that would “materially and substantially disrupt the discipline of the school.”
Schools have the difficult task of acting reasonably in the face of potential school disruption, while fulfilling their duty to adequately supervise their students. They will be held liable for foreseeable injuries proximately related to the absence of adequate supervision. School administrators and teachers effectively assume the role of parent or guardian. Schools must exercise such care of students as a parent of ordinary prudence would observe in comparable circumstances. But does a school have a duty to protect students from internet threats of violence by fellow students?
The most famous case involves the families of the victims of the Columbine shooting who sued the school district for negligence. The families alleged that the school knew or should have known that the shooters’ websites contained death threats; plans to use pipe bombs; and descriptions of bombs being built by the shooters, and, therefore, had a duty to protect the other students. Colorado law, however, required a showing that the school and sheriff’s department acted willfully and wantonly in failing to protect the students and there is no duty to protect others from harm by third parties unless a special relationship exists between the parties. No special relationship was found between the school and the shooters because they spent substantial time off school premises without direct supervision.
If such a tragic event happened in New York, the specific facts would determine whether a school could be liable. Like Colorado, police in New York have no duty to control the conduct of third persons to prevent them from causing injury to others. Unlike Colorado, New York requires a school district to use the same degree of care that a reasonably prudent parent would. This duty requires a school to act when a child, while in its charge, is threatened by the negligence of a third party, and it must make reasonable efforts to anticipate such events. The plaintiff must show that school authorities had specific knowledge or notice of the dangerous conduct which caused the injury and that the school’s negligence was the proximate cause of the injuries sustained. Notice of a threat of violence may be actual or constructive. Of course, if a school district must act as a reasonable parent in guarding against threats, what duty does a school district have to monitor student internet use? If the school becomes aware of a student concern, they should do further inquiry.  
A school district may have notice of sexual harassment that occurs online between student to student and teacher to student. The U.S. Supreme Court has recognized a private right of action against a school board in such cases of sexual harassment. A plaintiff must show that a school official who had authority to address the alleged discrimination and to institute corrective measures on the recipient’s behalf had: (1) actual knowledge of, and (2) was deliberately indifferent to (3) harassment that was so severe, pervasive, and objectively offensive that it (4) deprived the victim of access to the educational benefits or opportunities provided by the school. This raises the issue of notice and whether a school official had actual knowledge based on prior complaints. A complaint of harassment need not be undisputed or uncorroborated before it can be deemed to fairly alert the school district of the potential for harassment.  
A school district’s most powerful means to ensure that students use district internet and email appropriately is a well crafted and widely disseminated student Code of Conduct or Acceptable Use Policy (AUP) that students must sign before accessing the internet via district computers. At minimum, AUPs should state: (1) the district’s expectation that the computing facilities will be used exclusively for educational purposes; (2) the district’s expectation that students will use educationally appropriate speech and expression when using the internet and other technological tools; (3) the users’ responsibilities to avoid copyright violations; (4) the users’ reasonable expectations (or lack of expectations) of privacy in any and all uses of district technology resources and; (5) the users’ responsibility to avoid substantial and material disruption of the education process for the school community. The AUP should use specific examples like accessing educationally inappropriate internet materials; hacking into district programs; plagiarizing; sending or forwarding inappropriate, vulgar, or harassing emails. All terms in the AUP such as “vulgar” or “indecent” should be carefully defined and the AUP should reference an appended glossary because of the risk that a court may construe the terms to be unconstitutionally vague.  
The advent of the internet has created “personal property” search and seizure issues for school districts attempting to protect and discipline students. Generally, students have diminished Fourth Amendment rights with regard to the school districts search of their persons or belongings. However, a similar on-campus/off-campus distinction as that found under the First Amendment is controlling. On-campus searches are deemed to be reasonable in light of the special relationship between teachers and students and the need to maintain discipline and order in schools. Where there are reasonable grounds for suspecting that a student violated the law or school rules, a search is permitted. A school administrator’s detention and interrogation of a high school student in connection with a pirated and stolen school software program was reasonable. However, when school officials entered the students’ homes without a warrant and seized their personal computers, they violated the students’ Fourth Amendment rights.           
There are many issues facing New York schools and the internet only contributes to the challenge to keep students safe. However, there are certain things to be done that are conducive to a safe and educational environment. Teachers and administrators should always act in a reasonable fashion and be especially vigilant to inquire when an issue affecting student safety is brought to their attention. Whether the problem developed at home or at school, once an administrator learns of the problem, it has effectively become a school related issue that may cause a significant disruption or even worse, violence.

Mr. Suozzi gratefully acknowledges the assistance of Gregory Michalek for his assistance in researching this article.

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