If this violated child pornography laws, we will get the remarkable outcome that a school system is not allowed within 2500 feet of a school. So it's not all bad!
Here's some thoughts on the Fourth Amendment illegal search claim, at least:
There is this 2001 case, Kyllo v. United States, that held it illegal for the police to use a thermal scanner to detect heat lamps in a guy's house (the heat lamps being used to grow marijuana). The Supreme Court held, in an opinion by Justice Scalia:
"Where...the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search' and is presumptively unreasonable without a warrant."
Seems to me this case falls pretty squarely within the Kyllo rule. Maybe webcams are in public use, but a spy program connected to a webcam and operated by someone other than the possessor of the computer would probably not be. The webcam photos were of the inside of a home, and those photos could not have otherwise been taken without going inside the home.
You may very well be allowed to die your hair blue, have a "legalize weed" bumper sticker on your guitar case, or an explicit novel in your backpack off campus, but if you do any of those things on-campus you violate school rules and can be punished.
Furthermore, even things you do off-campus can violate your school's code of conduct (writing about how much your teacher sucks publicly on Facebook), and you can be punished at school.
(And obviously, IANAL).
I don't think that's precisely correct. It's not illegal -- the cops aren't going to be sent to jail. It just makes the evidence inadmissible.
And that subtlety makes all the difference in this application.
Usually an illegal search is brought up as a defense by the person who was searched and is now being charged with evidence obtained in the search. The issue in these cases is whether the fruits of the illegal search should be used against the person who was searched. (See http://en.wikipedia.org/wiki/Exclusionary_rule)
An illegal search is in all cases a violation of a right and therefore the person who was searched has a legal remedy. This is the basis of the suit by the students against the school (see the pdf at the bottom of the article.)
As far as I'm aware this never happens, or at least I've never heard of it. But then, IANAL.
Not that I disbelieve you, but I'm curious. Can you cite some real-life cases where officers that poked their noses where they ought not have later been prosecuted and actually been punished? My guess is that they'll be protected by qualified immunity. (but then, that immunity probably isn't available in the case at hand)
Anecdote: I have a friend who was handing out pamphlets in front of the post office on Tax Day. He was arrested and later sued for 1st Amendment violations. He won his case against the town, but the prosecution against the officers failed because they thought they were doing the right thing (with no acknowledgment of the fact that their job makes it critical for them to have this knowledge).
Section 1983 says that a violation of a constitutional right gives rise to a civil remedy for damages. A violation of the Fourth Amendment right is such a violation of a constitutional right. If the school officials, being officers of the state, did not comply with the rule in Kyllo, then they would be in violation of the Fourth Amendment, so they could be liable for damages under section 1983.
The officials could defend on the grounds of qualified immunity. However, to win on this defense, the officers must show that the law was not "clearly established." The argument I would make is that Kyllo is clearly established, so qualified immunity would not apply.
The Wikipedia article on section 1983 provides some examples of its uses:
That's not how child porn laws work.
Laws should always be enforced most harshly against govt agents and folks who actually advocate the laws in question.
Govt employment is not a right and if someone is unwilling to accept heightened scrutiny, they can work for someone who is willing to accomodate that preference.
You should not be punished more harshly because you are a "government agent." What does your postal clerk have to do with some idiot congressman who passed too strict a law on child porn?
FWIW, my understanding is that messing with the post in general is a federal crime. It has nothing to do with the government employee being more 'important' than the common man; that's just an unintended side effect.
We know. We think that the law is wrong.
Note that DAs tend to give their fellow govt employees, especially police, a pass, so in practice the law is easier on govt employees. It's a trifecta of tribal, lobbying by govt employees, and "one hand washes the other".
> It has nothing to do with the government employee being more 'important' than the common man; that's just an unintended side effect.
Actually, it's quite intended. Look into the history of how those laws came about. They were lobbied for by govt employees.
And then there's the fact that DAs tend to go hard whenever a fellow govt employee is a victim. It's the same trifecta.
Highway patrol officers who break traffic laws without using lights and sirens should be punished more severely than a first-time offender who is a normal citizen. Cops who abuse their power need to serve prison time.
With great power comes great responsibility.
We give our public school teachers a lot of power over the lives of our kids, by entrusting our kids to them for several hours a day. If they abuse the public trust, the potential for damage is much higher, and the punishment should be correspondingly more severe.
If we let our schools enact zero-tolerance policies for punishing our kids, we have the right to enact zero-tolerance laws for them f*ing with our kids' lives.
I don't disagree, but that's not what the law says. Get it into a law, and then reality will match up with your belief.
If they're not up to being held to a higher standard, they're not up to having authority.
Plus, enforcing more harshly on them brings attention to bad laws.
Like I said, if they're unwilling to accept this, if they want to be treated like an ordinary citizen, they can quit govt work and become one. No one is forcing them to work for govt.
Every paper-pusher can make your life a living hell. Every teacher and adminstrator can punish your kid. And, I haven't even mentioned police, DAs, judges, and folks who are supposed to exercise discretion.
Janitors and the equivalent are about the only govt employees who don't have considerable power. They're a small minority of govt workers.
i wish americans would understand this. that they don't means that abuses of power are treated in two completely different ways here. if it's the government, it's bad. if it's anything else (which typically means a private company) then it's "you shouldn't expect anything else you naive fool".
Except that it's not, because govt power is qualitatively different. A company can't throw you in jail. All that a company can do is refuse to deal with you.
> i wish americans would understand this.
I wish that non-Americans actually understood power.
Real power is when someone can do something to me or stop other people from dealing with me. It isn't when they refuse to deal with me.
all that matters is power. the distinction you make above can easily be handled in terms of power: someone who can throw you in prison has more power over you than someone who cannot. restricting that to "government" adds blinders. for example, it takes the focus away from those that pay lobbyists to enact and enforce certain rules. by focussing on power and those that wield it you are freed from distortions like that.
it's no different to any other field: focussing on the abstract concept lets you handle more cases. talking about "oop" is often more useful than talking about "java"; focussing on "government" rather than "power" is the same mistake as confusing java with (all of) object oriented programming.
of course, java is (probably) the largest oo language, just as the us government is (probably) the largest source of power. but that doesn't stop the more abstract approach from being more useful.
Since the power to throw me into jail is restricted to govts ....
> of course, java is (probably) the largest oo language, just as the us government is (probably) the largest source of power. but that doesn't stop the more abstract approach from being more useful.
As I've shown, govt power is qualitativively different.
Moreover, you're trying to use "they have power too" to ignore govt power.
And, interestingly enough, almost all of the examples of corporate power are actually govt acting on behalf of govt. And yet, you seem to think that more govt, that ignoring govt power, will solve those problems....
Yes, abstractions are useful. Yours is an excuse to ignore the big power problems of the world.
Government workers generally don't exercise their own authority in these respects they apply the local rules and laws. I don't know how USA school boards run so I can't say for sure this is true in the school situation however.
I think the argument is that secretly videotaping children within their own homes is inherently sexual. And even if it isn't, this seems like a clear violation of Roe v Wade.
Do you have a citation for that, out of interest.
It's considered something of a myth within LE and I wasn't aware a case like that actually existed.
I'd always be interested to see if it actually happened though - it would be useful research.
Mostly it is very easy to see the CP activity (dont forget were not just talking about images on the HDD here but actual activity indicative of behavior). If it were downloaded all together, with no references in, say, web history etc, no thumbnails and nothing in the cache files (which are FULL of rich information) then it would ring alarm bells :)
Eventually even the most elaborate malware will make a mistake with activity that is not "normal" - and the investigation is intensive enough to pick this up.
I also recall a case of a teacher whose school computer had malware that ended up displaying porn in the classroom who was arrested and faced up to 40 years in jail. I'm pretty sure she was acquitted.
After the initial conviction was set aside, after 4 delays in sentencing, "[...] facing health problems, Amero pleaded guilty to one count of misdemeanor disorderly conduct, paying a $100 fine and losing her teaching license, just to settle the case."
Placing a camera in someone's room is akin to placing it in a bathroom, because at some point someone's getting naked and how a group of adults didn't comprehend this speaks worlds about the quality of education provided by the school in question.
There's also the very concerning matter that 50% of the students are likely male, and ~90% of males access porn through the internet. This means that 45% of students likely used this computer to look at porn, which likely means at some point 45% of the students had their penis' out in front of the laptop in question, which has a remotely activated camera on it. This isn't even discussing the 1/3 of women who access porn via the internet. This isn't even discussing the fact that a percentage of these students likely used the cameras for video-sex with their partners (personal experience on that one).
I'm sorry this is either gross ignorance that should be as severely punished as possible or it's exactly as bad as this thread of comments has taken it, and it should be as severely punished as possible. Regardless the potential was there to use the system for child pornography, and if there are no records that any compromising pictures were taken, then the school and its board members got exceptionally lucky.
Since the camera was issued to accompany the student throughout their daily life: bedroom, changing the diaper of a toddler they are babysitting, bathroom, etc.