The newspapers Friday were filled with disturbing revelations:
The Lower Merion School District today acknowledged that investigators reviewing its controversial laptop tracking program have recovered "a substantial number of webcam photos" and that they expect to soon start notifying parents whose children were photographed.
Responding to a motion filed Thursday as part of a lawsuit brought by the family of a Harriton High School sophomore, School Board President David Ebby said the district’s lawyers have proposed enlisting Chief U.S. Magistrate Judge Thomas Rueter to supervise a system by which parents are to be notified and allowed to view the photos.
"We hope to start that process shortly," Ebby said in a statement addressed to parents and guardians and posted on the district’s website. "During that process the privacy of all students will be strongly protected."
(See the longer Inquirer story here.)
It’s a cold comfort to hear that the institution which systematically took surreptitious pictures of children in their home will "strongly protect" the children’s privacy the second time around.
So where’s this case going? As the Plaintiffs’ motion for sanctions against Carol Cafiero, the technology coordinator at Lower Merion, pointed out, Cafiero asserted her Fifth Amendment right against self-incrimination in response to every single question asked at her April 9, 2010 deposition.
Smart move in the big picture, since she’s also being investigated criminally. Criminal defendants do themselves no favors by doing all the talking upfront; best to wait to see what the prosecutors uncover before you start talking, if you talk at all.
For the civil suit, it’s a disaster. She can’t claim she was only doing her job in good faith when she’s not claiming anything at all.
But there’s a bigger problem lurking in the plaintiff’s motion:
For instance, in one email, when one IT person commented οn how the νiewing of the webcam pictures and screen shots from a student’s computer was like "a little LMSD soap opera", Cafiero responded "Ι know, Ι love it!"
Back when the lawsuit was first filed, some argued:
If Harriton High School actually gave its students laptop computers with webcams for the surreptitious purpose of spying on them, maybe they should be monetarily punished. If it was simply the action of an overzealous administrator of the program, then appropriate disciplinary action should be taken and procedures put in place to ensure it never happens again – and maybe leave it at that.
With the last revelation, we know it wasn’t just "an overzealous administrator" — at the very least, the IT personnel, too, knew about and enabled the secret "soap opera" Cafiero was watching for her own amusement. I doubt that IT person was alone in knowing of the program. Cafiero certainly wasn’t alone in watching the "soap opera;" the whole scheme was inadvertently brought down by an Assistant Principal.
Indeed, the most perplexing part of this story is how it came to light. As the complaint alleges, the school district unabashedly "informed minor Plaintiff that the School District was of the belief that minor Plaintiff was engaged in improper behavior in his home, and cited as evidence a photograph from the webcam embedded in minor Plaintiffs personal laptop issued by the School District."
They didn’t even consider that, just maybe, the parents wouldn’t be grateful to learn a school administrator was peeping on their child.
That’s a problem for the school district. They didn’t have an employee go rogue; they had multiple employees intentionally establish a hopelessly illegal policy of spying upon children — including taking photographs and monitoring communications — in their own homes.
The plaintiffs raised seven claims in their Complaint, seeking class action status:
- Interception of electronic communications in violation of the Electronic Communications Privacy Act;
- Theft of intellectual property in violation of the Computer Fraud and Abuse Act;
- Unauthorized access of an electronic communications service in violation of the Stored Communications Act;
- Deprivation of constitutional rights to privacy (under 42 U.S.C. 1983);
- Invasion of privacy in violation of the Fourth Amendment;
- Communication interception in violation of Pennsylvania’s Wiretapping and Electronic Surveillance Act;
- Invasion of Privacy (under the Pennsylvania common law).
I harbor doubts about the second, third and fourth claims (the fifth raises vicarious liability issues too complicated to go into here), but they’ve got winners in at least the first, sixth and seventh claims. If the Plaintiffs want to fight this case through litigation and trial up to a jury verdict, they’ve probably got the law and the facts to do it.
The latest Order of the Court, entered April 14 by agreement, indefinitely extends the time in which the Defendants have to answer the Complaint, based in part upon a prediction that the School District’s investigation will be concluded by May 4, 2010. A week thereafter, the original Plaintiffs will have to respond to the motions other parents filed to intervene in the case. (That’s not really a fight over which parents and children have viable claims or if one of their claims is worse than another’s; it’s a fight over whose lawyers will control the litigation.)
Based on that Order, I don’t understand how the School District came up with this press release:
On April 14, 2010 — two days ago — the Court issued an Order mapping out the events that we hope will lead to a resolution of the litigation. All parties agreed to the framework set forth in the Court’s Order. Indeed, a meeting among the Robbins’ counsel, the proposed interveners’ counsel and our counsel is scheduled for this afternoon.
The Court issued nothing of the sort; it issued an Order ensuring the photographs were kept as private as they can be at this point, and granting everyone a little bit more time before they have to start filing briefs against one another. There’s nothing at all about "a resolution of the litigation."
Similarly:
We do not feel it is appropriate for anyone other than the investigators to dictate the timing of the investigation and the release of complete findings. As we have made clear since day one, we are committed to providing all of the facts — good and bad — at the conclusion of the investigation.
The School District gave up the right to complain about premature forensic examinations when it spied on the students in the first place. The parents and children understandably need to know if they, too, were involved, and understandably don’t trust the School District to investigate the matter itself. Correspondingly, the Court already allowed the Plaintiffs’ discovery to begin, hence the Cafiero deposition, three other depositions, and "tens of thousands of pages of documents and e-mails."
So what’s next? It depends on the investigation. If the School District comes clean, then a permanent order can be entered against them prohibiting them from using the software, and the students actually spied upon — hopefully not many — can press forward on their claims for compensation, if they want. Some probably won’t; litigation takes a toll on everyone, particularly people trying to move on with their lives, like teenagers going off to college.
The signs aren’t looking good at this point, though. As the press release continues:
[T]he plaintiffs’ Motion suggests that the LANrev tracking feature may have been used for the purposes of "spying" on students. While we deeply regret the mistakes and misguided actions that have led us to this situation, at this late stage of the investigation we are not aware of any evidence that District employees used any LANrev webcam photographs or screenshots for such inappropriate purposes.
They just don’t get it. Watching someone at home, without their knowledge, for your private "soap opera" is the essence of "spying." Hearing that the spying was "loved" by the technology coordinator, enabled by another IT staff member, and revealed by (and thus known about) by an administrator implies that many more knew about and condoned the spying. Trouble loves company.
Until the School District accepts and confronts that, a "resolution of the litigation" will be out of sight for years to come as the Plaintiffs and other parents conduct their own investigations through the civil justice system.