by Sara Mullen
PHILADELPHIA The American Civil Liberties Union of Pennsylvania filed a federal lawsuit today against the TunkhannockAreaSchool District (WyomingCounty) for searching a student's confiscated cell phone without probable cause and punishing her for storing semi-nude pictures of herself on the device. The school subsequently turned her phone over to law enforcement.
"Students do not lose their privacy rights at the schoolhouse door," said Witold Walczak, the ACLU of Pennsylvania's Legal Director and one of N.N.'s lawyers. "School administrators have no more right to look through personal photographs stored on a student's cell phone then they have the right to rummage through her purse, read her diary and mail, or view her family photo album."
In January 2009, a teacher confiscated the cell phone of N.N., a 17-year-old senior, for using a cell phone on school grounds in violation of school policy. Later that morning, Principal Gregory Ellsworth informed N.N. that he had found "explicit" photos stored on her cell phone, which he turned over to law enforcement. He then gave her a three day out-of-school suspension, which she served. According to the student handbook, the first offense for misuse of a cell phone is a ninety-minute Saturday detention and the confiscation of the phone for the rest of the day.
The photographs, which were not visible on the screen and required multiple steps to locate, were taken on the device's built-in camera and were never circulated to other students. N.N. appeared fully covered in most of the photographs, although several showed her naked breasts and one indistinct image showed her standing upright while fully naked. The photographs were intended to be seen only by N.N.'s long-time boyfriend and herself.
"I was absolutely horrified and humiliated to learn that school officials, men in DA's office and police had seen naked pictures of me," said N.N., who graduated in 2009. "Those pictures were extremely private and not meant for anyone else's eyes. What they did is the equivalent of spying on me through my bedroom window."
According to the lawsuit, a few days later, N.N. and her mother met with David Ide, Chief Detective for the Wyoming County District Attorney's Office, who told them he had seen the photos and that the phone had been sent to a crime lab in Delaware. When N.N.'s mother stepped away, he told N.N. "it was a shame she had not waited until after her eighteenth birthday in April 2009, because, instead of getting into trouble, she could have submitted the photographs directly to Playboy magazine."
Soon thereafter, N.N. and her mother received a letter from then-District Attorney George Skumanick threatening felony child pornography charges if she did not complete a five-week re-education course on violence and victimization offered by the DA's office and the Victim's ResourceCenter. According to the suit, N.N. reluctantly agreed to take the course rather than face prosecution.
"Ironically N.N. was forced to take a class about victimization by the very people who were victimizing her," said Jacob C. Cohn of Cozen O'Connor, one of N.N.'s lawyers.
The lawsuit, filed in the U.S. District Court for the Middle District of Pennsylvania, names as defendants the TunkhannockAreaSchool District, Principal Ellsworth (who conducted the search), former DA Skumanick (who threatened to prosecute N.N.), Detective Ide, and Jeff Mitchell, the current Wyoming County District Attorney. It charges that the search of the cell phone and the punishment for the content of the photographs violated N.N.'s rights under the First and Fourth Amendments to the U.S. Constitution and the Pennsylvania constitution. It seeks to have all electronic and hard copies of the photographs destroyed.
N.N. was a schoolmate of Marissa Miller, Grace Kelly, and Nancy Doe, who sued last year over District Attorney Skumanick's threat to prosecute them for child pornography for revealing pictures of themselves found on other students' cell phones if they did not take the same D.A.'s re-education course that N.N. was forced to take. Earlier this year the United States Court of Appeals for the Third Circuit issued a ruling preventing the three girls from being prosecuted.
N.N. is represented by Walczak and Valerie Burch from the ACLU of Pennsylvania and Jacob C. Cohn, Ilan Rosenberg, Kathryn M. Rutigliano, Andrea A. Cortland, Micah J. Knapp and David M. Albert of Cozen O'Connor. The case is N.N. v. TunkhannockAreaSchool District, et al. More information about the case, including a copy of the complaint, can be found here:
http://www.aclupa.org/legal/legaldocket/nnvtunkhannockareaschooldi.htm
[Sara Mullen is assistant director of the Pennsylvania American Civil Liberties Union]
