Mandatory Webcam Policies Pose
Unanticipated Privacy Issues
for Public School Students
Hana Kamel is a Peer Mentor and Teaching Assistant for the Academic Success Department, member of the Geoffrey Fieger Trial Practice Institute, and a Staff Editor for the Michigan State Law Review.
High school students across the country were balancing experts: attending school, participating in sports and extracurriculars, socializing with friends, and finishing homework. With the sudden onset of the COVID-19 virus, these structured and regimented days that dominated American students’ lives devolved into amorphous and overwhelming days, pinned in front of a computer at home. Public schools, scrambling to find a virtual analogue for the routine school day, defaulted to keeping students online and on camera for eight hours a day, forty hours a week. However, students, parents, and even teachers have been increasingly vocal about the issues that arise when the school pushes its lens into everyone’s homes. Teachers have protested parental conduct in the background, citing issues with recreational drug use or partial nudity. Parents have complained about the lack of technology and space available for their children. Students have complained about the anxiety that accompanies their peers seeing the most intimate details of their lives. Each of these complaints circles a core issue in remote learning: when does this become an invasion of privacy?
Privacy is a constitutional right granted by the Fourth Amendment. The sanctity of the home is at the core of criminal law. While virtual school is not in the criminal law domain, the issue of when the government can force an open camera and microphone into a private home has been asked many times in criminal cases. When the government undertakes a “search” of a home, it necessarily implicates the Fourth Amendment. Because the Fourth Amendment is designed to protect an individual’s privacy in the abstract, the government’s use of technology to “virtually” rather than “physically” enter the home is constrained under the Fourth Amendment. The Supreme Court has established a test to accommodate the intangible yet integral notion of privacy. When an individual has a subjective expectation of privacy that society is prepared to accept as reasonable, then they are entitled to that expectation of privacy and the safeguards of the Fourth Amendment against such a “search.”
Are public schools “searching” students?
The question is whether public school students have a subjective expectation of privacy that society is prepared to recognize as reasonable. Before COVID, students had a subjective expectation of privacy on campus. Lockers with combination locks, enclosed backpacks, and locked cellphones are all manifestations of on-campus privacy. Objectively, however, a student’s expectation of privacy on campus is limited. While school officials will not rifle through a locker without good reason, officials are still free to access a student’s locker when they suspect danger or contraband. Police officers do not need a warrant or probable cause to search a student’s property on campus; searching a student’s property on campus needs only be reasonable. Cameras recording and monitoring students on campus are a permitted search. While these are limitations on a student’s privacy on campus, an objective expectation of privacy remains. For example, a teacher who confiscates a student’s phone cannot search the contents if they do not believe there is an immediate danger.
While a student has limited expectations of privacy at school, a student’s constitutional rights are at their zenith within that student’s home. Many people believe the home to be immensely private. The colloquialism that “your home is your castle” demonstrates a cultural belief that privacy is inherent in the home. Fourth Amendment jurisprudence appears to agree. The Fourth Amendment itself bars the government and its agents from entering the house unless its agents have a warrant or probable cause. As agents of the government, public school officials rarely, if ever, enter a student’s home. The few scenarios in which a school official might enter a house are limited to criminal-adjacent issues such as student truancy, or public functions such as social services, developing Individualized Education Plans, or accommodating needs under the Americans with Disabilities Act. Regardless of the reason, when a school official does enter the home, it requires strict compliance with all relevant bureaucratic standards, including notice and consent to enter.
Remote learning in COVID means that students are simultaneously on campus and off campus. Realistic expectations of privacy exist somewhere between these two extrema. Given the sanctity of the home and the limited expectations of privacy in a public school, it is highly likely that a student has a subjective expectation of privacy that society can deem reasonable in online learning. Consequentially, a school’s camera lens in the private home is a search under Katz v. United States. This expectation of privacy means that public schools must comply with students’ Fourth Amendment rights as a proxy for the government.
Can public schools search students?
Given that the school requiring a student to turn on their camera is a “search” under the Fourth Amendment, the next question is whether that search is authorized. The default authorization of a search under the Fourth Amendment is the requirement for a warrant or probable cause. In school contexts, however, the Supreme Court has made several exceptions. A student’s constitutional rights in a school environment are balanced against the interests of the school. Legitimate school interests that justify the rollback of students’ constitutional rights have included the interest in the students’ safety and the students’ education. Ultimately, a search is authorized if the search was justified in its inception and if the scope of the search is reasonable. A school requiring students to turn on their cameras must satisfy both of these requirements.
A school may justify a search with its legitimate authority to protect students. Students have some expectation of privacy on campus, and recording a student is a search, but schools are still free to install security cameras on campus. On-campus cameras are permissible because the use of security cameras endeavors to protect students and maintain a safer campus. Cameras on campus are not necessarily the equivalent of cameras in a student’s house. The purpose of security cameras on campus is to maintain the security of the campus. The security interests of the school must be rationally related to the search. The use of video surveillance equipment to increase security is an appropriate and common-sense purpose. The safety of an entire student body on campus is rationally related to the use of security cameras. However, a school’s security concerns for a student are practically obsolete on Zoom when students are neither on campus nor the in loco parentis responsibility of the school. A school must find a non-security interest to require students to turn on their cameras.
Alternatively, a school has a legitimate authority to cultivate a quality education and curriculum for the educational interests of its students. This authority includes the ability to maintain a learning environment conducive to a student’s ability to engage, focus, and learn. However, most of the law that stems from this authority is a school exercising its power to censor student speech. A school’s authority to roll back students’ constitutional rights to cultivate a quality learning environment has been limited to students’ First Amendment rights. A school’s established interest in satisfactory learning environments has never been directly balanced against students’ Fourth Amendment rights. This is a novel question of law.
How should public schools proceed?
Even if this unprecedented application of the school’s educational interests to the Fourth Amendment justifies the search at its inception, there is still a question of how far this search can go. At the onset of the pandemic, many schools opted to replicate the school day online, asking students to sit at their computer and on camera for almost eight hours a day. Setting aside the exhaustion and frustration of these students, the government granting itself latitude to enter millions of homes for close to forty hours a week on “educational interest” alone is likely untenable.
A policy that requires students to turn on their cameras for the entirety of class, each class, is highly intrusive. Once COVID and its associated education barriers dissipate, this policy cannot be justified in the long term. Requiring students to keep their cameras on for the entirety of class, each class, is the most intrusive form of a camera policy possible. The analysis of a policy that infringes on constitutional rights must necessarily analyze whether there are better methods to apply the policy that achieve similar results.
The primary argument for keeping cameras on all class, every class, is that students are not engaged when their cameras are off. Student performance is on the decline in remote learning. While engagement may increase when the camera is on, so does a student’s anxiety and distraction. A camera reveals a student’s home, their conduct, and the conduct of everyone in the background to an entire class. This heightened visibility is a commonly reported anxiety among remote learners. Education is an equalizer: every student sits in the same classroom, at the same desks, facing the same way, learning from the same teacher. The vast differences in at-home life highlight the absence of these equalizing forces in online environments. Students get distracted by watching themselves, watching others, and looking around to make sure that their environment is acceptable. They are not guaranteed to focus simply because the camera is on. Many of these factors are counterintuitive to the educational goal behind requiring students to turn on their webcam. While it maximizes the ability of a teacher to monitor students, it remains dramatically intrusive and not inherently productive.
If a school wants to require students to turn on their cameras during class, the least intrusive method would be to limit the extent to which students are required to comply and give students control over when they comply. Students share their homes with parents, guardians, and siblings. The ability of a student to control their environment for the entirety of a school day, every day, is extraordinarily limited. The core concerns are the length of time and the expected control a student has over their environment. A limited video feed policy may address both of these more effectively. Giving students a 1) limited period that turning on a camera is required and 2) advanced notice of that requirement grants students control. Students will share that notice with their parents and siblings, who can then plan to avoid any “inappropriate” conduct or reschedule their own use for shared devices. Students will have more of an opportunity to focus and engage. Embarrassment and anxiety will not be vitiated entirely but are lessened when a student has the power to equalize their environment in the eyes of their teachers and peers.
The most effective guide for a constitutionally durable and long-lasting policy should follow the guidance of the Fourth Amendment. The government is limited in time and scope when it intrudes on privacy expectations by searching or seizing someone’s belongings. Therefore, a policy that requires students to turn on their cameras should be limited in time and scope. These limitations could take numerous forms. One proposal is that if a school wishes for all students to have their cameras on for the entirety of class, the school should shorten class times to lengths that allow students to take control over their house as a learning environment and shared electronic devices.
An alternate proposal is that a school schedules students for days in which they would be “on call” for designated classes. Students who are not “on call” in that class are not required to have their cameras on while those who are “on call” are visible and participating. This option is best optimized when the plan considers the whole school day, and not each individual teacher and each individual class. Allowing each teacher to make the schedules without any regard for other obligations students have in other classes makes this plan obsolete—a student may end up in front of the camera for the entirety of the day anyway. These two plans can also be implemented together.
This suggestion also accommodates the balancing factors required when the school implements a policy that necessarily impedes students’ privacy rights. It is far less of an infringement while still accommodating the school’s interests in students’ education and participation. A full day of video feed may not be inherently unconstitutional, but it strains the binds of a “reasonable scope” of government action.
Each suggestion rests on the idea that students should have the ability to consent to turning on their cameras. These plans also enable students to control the environment that is their shared homes without burdening their siblings and parents. This requirement of student consent and empowering students to negotiate their environment distinguishes the grey area between on-campus privacy expectations and at-home privacy expectations. There are not just Fourth Amendment issues at play in the interior of a home. Political Speech and Religious Freedom, both protected by the First Amendment, are implicated. The use of political iconography in the home has a high potential for disruption in a classroom, but is a core right held in a private household. In some religions, the interior of the home holds sacred and special meanings.
This is not an argument for religious or political exceptions but rather an identification of a hallmark of the home that cannot easily be perforated. While the school has great latitude, especially as online learning remains novel and essential amid a pandemic, the school cannot treat the student’s home as a classroom. For this reason, if implementing such a policy, a school should either shorten class times or schedule days that different students turn on their cameras. Each of these alternatives respects the integrity of the private household while maximizing the school’s legitimate interests in a student’s education and safety. Most importantly, these options respect the autonomy of students as individuals with constitutionally protected privacy rights. Requiring students and their families to consent to a schedule and empowering students to take control of their learning environment puts students’ own educational needs at the forefront.
In the future, when a vaccine is distributed, and the spread of this virus has (hopefully) dissipated, the new accessibility features introduced to our society will not vanish. Web-conferencing platforms will be cost-effective and easy ways to perform tasks that we now know can be done from remote locations. Indeed, these tools will be imperative when future emergencies, such as hurricanes or blizzards, interrupt daily life. It is this longevity of web-conferencing and its potential use in a post-COVID world that requires ethical usage.
The norms we ask people to accept today—even if those norms are policies that require people to surrender some of their constitutional rights—set a precedent. The policies that make life easier for us today must be weighed against our constitutional values in the future.
 U.S. Const. amend. IV. (“The right of the people to be secure in their persons [and] houses . . . against unreasonable searches and seizures, shall not be violated . . . but upon probable cause.”)
 See id.; Katz v. United States, 389 U.S. 347, 350 (1967) (stating that the Fourth Amendment’s purpose is to protect individuals against unlawful government intrusion).
 See Katz, 389 U.S. at 351 (holding that the intangible use of technology, such as a wiretap, can be an intrusion into one’s privacy and therefore requires probable cause under the Fourth Amendment); Kyllo v. United States, 533 U.S. 27, 34 (2001) (holding that the use of infrared technology to survey electricity use within a home is analogous to actually entering the home and therefore requires probable cause).
 See Katz, 389 U.S. at 361 (Harlan, J., concurring) (establishing the two elements that compromise a governmental search: an individual has a “subjective” expectation of privacy and society agrees that the individual’s honest belief in their privacy is “reasonable.”)
 See generally Zamora v. Pomeroy, 639 F.2d 662 (10th Cir. 1981) (holding that under the doctrine of in loco parentis, where school officials are acting in a quasi-parental authority over students during school hours, there is both a duty and a right to search student property when there is a suspicion of danger or contraband).
 See id.
 See Brannum v. Overton County School Board, 516 F.3d 489 (6th Cir. 2008).
 See G.C. v. Owensboro Public Schools, 711 F.3d 623, 633-634 (6th Cir. 2013).
 U.S. Const. amend. IV.
 See New Jersey v. T.L.O., 469 U.S. 235, 333 (1985).
 See id. at 341-42.
 See Brannum, 516 F.3d at 496.
 See id.
 See, e.g., Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 506 (1969); Morse v. Fredrick, 551 U.S. 393, 403 (2007).
 See, e.g., Maryland v. Buie, 494 U.S. 325, 335-36 (1990) (holding that officers entering a home can search no longer than is necessary to dispel the reasonable suspicion for the search).
 See, e.g., Marron v. United States, 275 U.S. 192, 196 (1927) (outlining a judicial aversion to general warrants and searches and emphasizing the preference for warrant particularity and limiting the scope of a search).
 See, e.g., Meghan Roos, Teacher Threatens to Kick Out Student with Trump 2020 Flag in Virtual Background, US Newsweek (Sept. 28, 2020, 5:08 PM EDT), https://www.newsweek.com/teacher-threatens-kick-out-student-trump-2020-flag-virtual-background-1534746.
 Madeline Will, Most Educators Require Kids to Turn Camera On in Virtual Class, Despite Equity Concerns, Education Week (Oct. 20, 2020), https://www.edweek.org/teaching-learning/most-educators-require-kids-to-turn-cameras-on-in-virtual-class-despite-equity-concerns/2020/10 (mentioning how Muslim women who choose to veil do not typically veil in their home, but must now veil when they or their kids are in class).
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