EFF filed a amicus brief Urges the Arizona District Court to protect the free speech and privacy of public school students, saying that use of a school-issued laptop or email account does not clearly mean that a student is “on campus.” We argued that students need private digital spaces beyond the reach of their school to speak freely, without fear of constant school monitoring and punishment.
Surveillance software exposed a bad prank played in the privacy of a student’s home
Case, Merrill v. Marana Unified School DistrictIt involves a Marana High School student who, while at home one morning before school started, asked his mother for advice about a poor grade he received on an English assignment. His mom said he should talk to his English teacher, so he opened his school-issued Google Chromebook and started drafting an email. The student then wrote a series of jokes in the draft email which he deleted each time. The last joke said: “Gang gang give me a better grade or I’ll shoot the school homie”, which he told in a silly voice to his mother before deleting the draft and turning off his computer.
Within an hour, the student’s mother received a call from the school principal, who said that Gaggle monitoring software had flagged a threat from her son and sent along screenshots of the draft email. The student’s mother attempted to explain the situation and reassure the principal that there was no danger. Yet, despite her assurances and the student’s lack of a disciplinary record or history of violence, the student was ultimately suspended over the draft email – even though he was physically off campus at the time, before school hours, and had never sent the email.
After unsuccessfully challenging student’s suspension, family Sued the school district Alleging a violation of the student’s right to free speech under the First Amendment and a violation of the student’s right to due process under the Fourteenth Amendment.
Public school students get more First Amendment protection for off-campus speech
The US Supreme Court has addressed the First Amendment rights of public school students a handful of cases,
Most notably, in Tinker v. Des Moines Independent Community School District (1969), the Court said Students cannot be punished for their on campus Speech unless the speech “materially and substantially” disrupts the school day or invades the rights of others.
Decades later, in By and through Mahanoy Area School District v. BL Levy (2021), in which EFF filed a brief, The Court further stated that schools have less leeway to regulate student speech when that speech occurs off campus. Importantly, the Court held that schools should have limited ability to punish off-campus speech because “from the student speaker’s perspective, the rules on off-campus speech, when combined with the rules on on-campus speech, include all speech uttered by a student during an entire 24-hour day.”
The Ninth Circuit has further held that off-campus speech is punishable only if it contains “substantial nexus“Creates a credible threat of further violence to the school.
In this case, therefore, the extent of the school district’s authority to regulate student speech is tied to whether the high school student was on or off campus At the time of speech. The student here was at home and thus physically off campus when he wrote the joke in question; He wrote the draft before school hours; And this joke was not emailed to anyone on campus or associated with campus.
Yet the school district is arguing that his use of a school-issued Google Chromebook and a Google Workspace for education account (including an email account) makes his speech – and the speech of all students – automatically “on campus” for the purposes of justifying punishment under the First Amendment.
Schools provide students with valuable digital tools – but they are also monitored
EFF supports the plaintiffs’ arguments that the student’s speech was “off campus”, did not have a sufficient connection to the school, and did not constitute a credible threat. In our amicus brief, we urged the trial court to do at least refuse There is a rule that use of a school-issued device or cloud account always constitutes a student’s speech “on campus.”
Our amicus brief supports the plaintiffs’ First Amendment arguments through the lens of surveillance, emphasizing that digital speech and digital privacy are inextricably linked.
As we mentioned, Marana Unified School District, like many schools and districts across the country, provides students with free Google Chromebooks and requires them to have an online Google Account to access various cloud apps in Google Workspace for Education, including the Gmail app.
Marana Unified School District also uses three monitoring technologies that are integrated into Chromebooks and Google Workspace for Education: Gaggle, GoGuardian, and Securely. These surveillance technologies can collectively monitor everything students do on their laptops and online, from the emails and documents they write (or even just the draft) of the websites they visit.
School digital surveillance slows down students’ speech and causes more harm to students
In our amicus brief, we made four main arguments against a blanket rule that classifies any use of a school-issued device or cloud account as “on campus,” regardless of whether the student is geographically off campus or outside of school hours.
First, we pointed out that such a rule would not result in students getting any exemption from the school authority, which is contrary to the Supreme Court’s warning. Mahanoy Do not regulate “all speech by a student during an entire 24-hour day.” There must be some place that is “off campus” for public school students to still use the digital tools provided by schools, otherwise schools will be too much of a presence in students’ lives.
Second, we urged the court to strike down such an “on campus” rule. To reduce it The devastating impact of digital surveillance On students’ freedom of speech – that is, there is a risk that students will self-censor and choose not to express themselves in certain ways or not access certain information that school officials may disapprove of. If students know that no matter where they are or what they are doing with their Chromebooks and Google accounts, the school is tracking them. And The school has more legal authority to punish them because they are always “on campus”, students will undoubtedly have their speech curbed.
Third, we argued that “On Premises” Rules Desire Exacerbate existing inequalities in government schools Among students from different socio-economic backgrounds. it will happen Low-income students are clearly disadvantaged More likely to rely on school-issued devices Because their families are not able to buy personal laptops or tablets. it makes a “Pay for privacy” scheme:Low-income students are subject to more school-directed monitoring and related discipline for digital speech, while wealthier students can limit monitoring by using personal laptops and email accounts, giving them more robust free speech protections.
fourth, Such an “on campus” rule would encourage public schools to destroy students’ privacy by subjecting them to almost constant digital surveillance. Student monitoring technologies used by schools are notoriously privacy invasive And wrongcausing various harms to students – including unnecessary scrutiny and discipline, exposure of sensitive information, and desensitizing education.
We urge the Arizona District Court to protect the free speech and privacy of public school students by rejecting this approach to school-managed technology.As we said in our summary, students, especially high school students, There is a need for some area of digital autonomy, free from surveillance, judgment and punishment, Just as much as anyone else – expressing yourself, developing your identity, learning and exploring, being silly or rude, and even making mistakes.,
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