The Times They Are A-Changin’: The “Sexting” Problem and How the Intrusiveness of a Cell Phone Search Determines the (Un)Constitutionality of Suspicion-based and Suspicionless Searches in the Public School Setting

Andrew T. Moore, Michigan State University College of Law

Abstract

In the past decade cell phone use amongst teenagers has gone from luxury to perceived necessity. With the expanded abilities of modern cell phones, students are able to easily participate in social sexual behavior such as sending explicit images of themselves or others to other cell phone users, an activity known as “sexting.” While schools may want to do all they can to eradicate this behavior, school administrators must not violate the constitutional rights of their students in the process of doing so. When a school administrator comes to suspect “sexting” behavior, he or she must follow existing Fourth Amendment jurisprudence when deciding whether or not to execute a search. When analyzing the constitutionality of a cell phone search through the lens of existing Fourth Amendment jurisprudence, it can be seen that, because of the highly intrusive nature of a cell phone search, a suspicion-based search will only be constitutional in situations where there is an immediate threat to the safety of a student or the student body and a suspicion-less search will never be constitutional. Because cell phone searches are very hard to justify, schools should implement very strict sell phone usage polices to control cell phone use and have a clearly defined policy that explains when a search will be implemented. While this paper concludes that cell phone searches will usually result in a violation of a student’s Fourth Amendment rights, it offers a very strict and clearly defined school policy that will lower “sexting” in schools and define a constitutional search policy.