By Elizabeth Wong, Associate Director
It’s hard to find a teenager today who isn’t carrying some electronic device that allows him or her to communicate with others.  And with smart phones becoming more commonplace, students always seem to be connected.  These days phones aren’t just for spending hours talking to friends.  Now, students can surreptitiously communicate via text message, take and send photos, check email, and share their world through social networking sites like Facebook and Twitter.
Just as the rest of society has become more technological, so has the school yard.  The social challenges that students once faced in person or through written notes passed secretly in class have gone online.  To keep up with sexting and other problems, school officials have had to adopt new policies limiting or even banning the use of cell phones and other electronic devices.
But what happens when these policies are violated?  When, for example, can a cell phone be confiscated, and what are the restrictions on school officials viewing text messages and stored photographs once that happens?
According to a recent advisory opinion issued by Virginia Attorney General Ken Cuccinelli, school officials have the authority to confiscate and search students’ cell phones and laptops, but only when they have reasonable, individualized suspicion of a wrongdoing and they believe that a search of the device will yield evidence of that wrongdoing.
The Fourth Amendment guarantees our right to be free of unreasonable searches and seizures, and by and large the AG seems to understand the Fourth Amendment as it applies to public school students.  But the opinion was requested by Del. Robert B. Bell to provide guidance for educators on searches related to incidences sexting (and cyber bullying, which we will deal with at another time) and I’m not sure it accomplishes that.  Granted, the AG does not make policy or issue guidelines, but if school officials are left solely with the AG’s legal analysis as their guide to dealing with sexting, they may be missing the most important information they need to address these problems fairly.
As a matter of policy, school officials should refrain from seizing and searching cell phones whenever possible.  Looking though a phone’s text messages and photographs inevitably pries into the legitimate private communications of students.
But when there is reasonable suspicion of sexting, as the AG says, a search of a phone’s content may be justified.  The important question then becomes, what to do with the photos?  Cuccinelli says they should be turned over to the police, but this instantly elevates a stupid decision by a teenager from rule breaking to a crime—and a felony at that.
The ACLU recently represented a young man, under 18, who was charged with possession of child pornography when the principal of his school discovered that a young girl had sent him semi-nude pictures of herself.  Arrested and charged with a felony that could have stayed on his record for life, affected educational and employment opportunities, and even resulted in being listed as a sex offender, the young man sought our assistance.
Our lawyer got the charges dropped, but the case should never have gone that far.
Not to diminish the seriousness of sexting, but one adolescent sending nude pictures of himself or herself to another adolescent is not child pornography in anyone’s book. Such foolishness needs to be discouraged through educational opportunities that point out its inappropriateness and consequences, and possibly through punishment.  Educators and lawmakers need to get together now to come up with a thoughtful productive response to sexting.  Otherwise the only official opinion out there, the AG’s, is dangerous overkill that could destroy a lot of lives before they have hardly begun.