A standstill order is expected today from the Eastern District of Pennsylvania on the case of Lower Merion School District’s alleged practice of spying on students in their own homes through the use of school-issued, webcam-equipped laptop computers. The order is designed to provide all sides with a chance to better assess the technological issues facing this growing controversy.
While the language of the order is still being worked out at this time, a hearing into the plaintiffs’ Motion for Issuance of a Emergency Temporary Restraining Order and Permanent Injunction, filed on Friday afternoon by Mark Haltzman, attorney for Harriton High School Sophomore Blake Robbins, touched upon the major concerns addressed by Haltzman in Friday’s motion, as well as some concerns raised by counsel for the school district in a court filing today.
Three main issues unfolded in Courtroom 12-B: the language of any court order, how best the school district can keep parents and students apprised of the controversy as it continues, and balancing a need to update hardware and software with the reality of preserving essential evidence.
First, the school district wanted to be sure that any court order be devoid of language which could be perceived as having a negative connotation, noting the heading of Haltzman’s motion filed on Friday.
“We don’t want it to be called an ‘injunction,’” said Henry Hockheimer Jr. of Ballard Spahr, lead counsel for Lower Merion School District, noting that his clients had similar reservations about words like “enjoined,” preferring the more innocuous “prohibited.” Judge Jan E. DuBois agreed, saying that he understood the district wanting to avoid certain types of headlines.
The second main issue was the matter of updates being provided to parents and students by the school district. The district, Hockheimer said, has been inundated with questions and inquiries about what has been going on, and generally provides parents and students with e-mail updates.
The updates, Hockheimer insists, are “innocuous,” and are a necessary function of an organization that must continue to function as a school district. “These are taxpayers,” he said, “and the school district wants to keep its constituency informed.”
Just as he did in the motion filed on Friday, Haltzman insisted that the school district is providing misleading information, pointing out that on the very first day after the story broke, “the school principal denied the allegations over the loudspeaker, and this was before any investigation had been done.” The school district, he said, should say that it cannot comment on the case with a court order pending, and that he simply wants the opportunity to speak with his client without outside influence.
Judge DuBois looked for a compromise, and as of this moment the parties looked to agree upon a middle ground – that before releasing any updates, the school district would send a copy of the message to Haltzman for approval.
Third, the school district wanted to retain the ability to continually update district software and computers without restraint, citing concerns about viruses and other dangers.
Haltzman raised concerns that any updates or other measures could result in the spoliation of evidence, accidental or otherwise, reiterating the argument raised in the motion filed on Friday that, according to rumor, the school district was looking to temporarily reclaim possession of the laptops issued to more than 1,800 high school students, possibly to wipe hard drives and destroy evidence.
“We don’t even know for sure what software they are using,” Haltzman said, noting that after his forensic expert had a chance to assess software and hardware issues and determined that any system updates would not erase evidence, the school district would be fine to proceed.
“Although,” Haltzman said, gesturing toward opposing counsel, “he talks about viruses, and I think the people at Apple and Mac might be upset with him, because they market their computers as not being susceptible to such things.”
The plaintiff’s forensic expert noted that it would be “impractical to image all 2,000 computer hard drives,” but that with a few days taken to “perform an architectural analysis of the system” they could look to duplicate only the information relevant to the case and determine the next move to best balance the maintenance of the integrity of the data with the needs of the system.
Before taking recess to draft the language of the order itself, Judge DuBois stated that a “short run standstill order” would probably be best in this situation.
“That means no changes in the computers, no software updates, no releases,” DuBois said. “It should be something that will remain in place for a few days, and maybe longer if computer experts need it.”
Earlier today, it should also be noted, the American Civil Liberties Union submitted an amicus curiae brief in support of Blake Robbins, stating that the organization has been bombarded with inquiries by people who live in the school district out of concerns for the overreaching actions of the school district so many pay taxes to fund.
Vic Walczak, legal director for the ACLU of Pennsylvania, said that the organization simply wanted to “share our expertise in this area of constitutional law and to support the plaintiffs’ efforts to make sure this surveillance stops immediately.”
“No government official, be it police officer or school principal, can enter a private home, physically or electronically, without an invitation or warrant,” Walczak said. “In this case the officials are not just entering the foyer, but a child’s bedroom. Assuming the allegations are true, this is an egregious invasion of privacy.”
UPDATE: ORDER APPROVED
As of a few minutes after 5:00 p.m. today, an order has been approved by the court. It breaks down into five areas, much of which was touched upon above. For a copy of the order, click HERE.
First, Lower Merion School District is prohibited from either remotely activating any and all web cams embedded in lap top computers issued to students, or from remotely taking screenshots of the computers.
Second, while this suit is pending, the district and its employees are not permitted to contact any students or families of students who have been issued a laptop computer by the school district regarding the issues in the complaint. There are exceptions, though. The district is free to contact students and parents in connection with curricular and instructional matters, administrative matters not germane to the controversy, disciplinary matters, guidance counseling matters and more, so long as it is not related to the issues arising in connection with the suit.
Should the school district provide any update regarding the pending action, a copy of any statement must be provided with six hours advance notice to plaintiff’s counsel, and shall be disseminated only after receiving consent.
The school district is also free to provide “new software, software updates, or other such releases for the students’ laptops … but only after receiving written consent from plaintiff’s counsel. This addresses the concerns I discussed above, and will ensure that any new updates will not endanger, alter or destroy evidence essential to the case. Both parties will also take action to assess the possibility of whether any updates have that capability — once it is established that no harm can be done, no prior consent will be needed.
Third, the school district will preserve all data.
Fourth, the school district may maintain its practice of “taking possession of laptops that are currently possessed by students with appropriate authorization only at the end of the school year or in the events of breakage or other technical failure,” but the school district must cooperate with forensic consultants on both sides of the litigation in doing so. The parties must also cooperate with law enforcement authorities, the U.S. Department of Justice, the FBI or the Montgomery County District Attorney’s Office with regard to preserving the data on those laptops.
Fifth, and finally, the laptop currently in Blake Robbins’ possession will be turned over to a third-party forensic consultant, and the hard drive will be imaged via a mutually agreed upon procedure. That consultant will also retain possession of the device throughout the case.
For more information on Robbins v. Lower Merion School District at America’s Right, click HERE.