Big Brother or New Technology?
[Guest post by DRJ]
A Philadelphia plaintiff alleges a Pennsylvania school district used a school-provided laptop with webcam to remotely activate and take pictures of the student’s home without the knowledge or consent of the student or his parents. Reportedly the school district believed the laptop was stolen or missing.
It sounds very Big Brother-ish but it’s also a novel use of technology. What might a court decide? Orin Kerr starts the discussion.
— DRJ
http://www.itexaminer.com/stolen-laptop-takes-photo-of-thief.aspx
Here is a discussion of the software being used by a school in California.
Apparently a big target market for the product, called “Undercover” , is school districts.
TomHynes (2e563b) — 2/18/2010 @ 8:15 pmsomebody supposedly did this with and X-box or something the other day……
why is the school spending money on lap tops, cam or not?
redc1c4 (fb8750) — 2/18/2010 @ 8:16 pmmemo to self: hard wipe any lap top we steal, and cover up the camera lens.
redc1c4 (fb8750) — 2/18/2010 @ 8:17 pmI think Prof. Kerr’s right that it’s a pretty clear violation of Fourth Amendment rights that would give rise to a claim under 42 U.S.C. § 1983.
I would be surprised if it couldn’t also be pleaded as a state-law tort of the invasion-of-privacy flavor.
The problem could likely have been avoided entirely had the school district gotten fully informed consent. Now it has effectively destroyed the trust which might have justified the giving of that consent.
Beldar (adf497) — 2/18/2010 @ 8:47 pmI don’t buy the school’s excuse. They could have tracked down the laptop’s location from its IP address if they knew how to remotely access it. The pictures provide almost nothing useful towards recovering their property.
Socratease (9af923) — 2/18/2010 @ 9:08 pm> It sounds very Big Brother-ish but it’s also a novel use of technology
Not particularly so. The “webcam” is vaguely novel, it’s not even likely to be the best use if one is attempting to locate a piece of stolen equipment.
Several years back, a student at UF was murdered, and the killer took the student’s laptop. The police obtained the MAC address from the equipment’s network adapter (an ID/serial number as unique as a fingerprint, which is transmitted as a part of all TCP/IP connections), and, the next time the laptop logged onto the university’s computer system, the usage was flagged. Within hours they had a warrant and the killer/thief was apprehended, and quickly confessed, though he initially attempted to claim he’d “bought” it from someone.
The webcam sounds far more nefarious in intent. While it might be of some use in this instance, the very fact of its usage is particularly “big brother”ish.
> memo to self: hard wipe any lap top we steal, and cover up the camera lens.
And disable the network adapter (remove, if possible) and use an external one, too, for reasons above.
Laptops really have become a stupid thing to steal. They’ve gotten so cheap that they won’t net you that much money, they can fairly easily be traced back to the original owner when used on the internet, and so your best bet with one is to find any private information (SS#, bank accounts, etc.) which you have to be ready/able to take advantage of in very short order.
A really, really tech-savvy crook can dodge the MAC address problem, but it’s hardly worth the effort for anything but a very high-end laptop. If you’re that tech-savvy there are better ways to make money than stealing and altering laptops.
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Actually, with this software, I can see a bigger issue in the idea of a virus which activates the webcam, which gets used to spy on people by pervs working at computer “repair” shops. The voyeur segment of the population will probably notice the potential here, if they haven’t already.
This potential abuse is one reason I tend to leave my webcam explicitly disabled unless I need it (not that I expect some perv to want to look at me, actually). If I want to use it (rare) I’ll activate it via the device manager, then disable it when done.
IgotBupkis (79d71d) — 2/18/2010 @ 9:14 pmThe key here is the warrant. If the school district believes the laptop stolen, then it should file a police report. The police get a warrant for the “search”, and only then potential invade someone’s privacy.
A warrantless video tap is the same as a warrantless wire tap.
Steve B (5eacf6) — 2/18/2010 @ 10:52 pmAt VC, they’re treating this like a law-school exercise.
Richard Aubrey (719ec2) — 2/19/2010 @ 4:51 amSome of the VCers are law profs. The reaction of normal people to this is not on their radar screen.
I like their view that, since the school said they’d only use it to track stolen laptops, there’s no problem. Pinky swear. That’s good enough for VC.
The problem the school will have with it’s claim is that apparently in at least one case, pictures taken with one of the webcams (when the laptop was with the student at home) were use as part of the justification for punishing a student for “improper behavior” (I shudder to think what he was doing).
As others have said, there are many better ways to track down a stolen laptop than “remotely turn on the webcam”.
Pfft. I’ll bet you money that this is the market the software was initially developed for. Three words, my friend: High. School. Cheerleaders.
That is physically impossible. To insert software onto an xbox, you have to mod the system, because it doesn’t work like a computer would. You can’t load a file onto an xbox.
The people at Xbox can, however, take a call from the cops if you report your xbox stolen, and if your system connects to the Xbox Live service (even if the thief is using a different HDD, and is online with his own profile) and track it down in a manner much like described above.
They also use that for when you tell the cops someone is harrassing you and threatening you. If they find it credible, they can contact Xbox, and Xbox can get the police the location of the offending account. They actually have a guy who’s entire job is liaising with law enforcement.
Scott Jacobs (46e187) — 2/19/2010 @ 6:16 amAs long as the laptop belongs to the school, I can understand their right to do surveillance of what is on the computer, but not of what is coming through the webcam. If shots or clips from the webcam have been stored on the computer and they want to see if non-school related stuff has been saved, I think that would be their right.
But to essentially turn on the webcam and see what it sees, whether or not the computer’s user was doing that, I think is clearly not the right of the owner of the computer, if I understand the issue correctly.
MD in Philly (e347b2) — 2/19/2010 @ 6:34 amHere’s a salient point I’ve not seen discussed. The Lower Merion school district is one of the wealthiest in the nation. For those unfamiliar, Lower Merion is the eastern end of Philly’s Main Line, glorified in the movie “The Philadelphia Story.” Why are tax dollars being spent to provide laptops to kids whose parents, in most cases, make more than enough money to buy multiple laptops???? Methinks this school board needs a visit from some Tea Partiers to help get their minds right.
either orr (291505) — 2/19/2010 @ 6:42 amWhat’s the retail for bulk candid pix of seventeen-year-olds?
Richard Aubrey (a9ba34) — 2/19/2010 @ 8:42 amCould be a budget supplement….
It’s gone too far when students are being secretly monitored in their homes. I’m at a loss to explain why anyone, especially conservatives, would support this.
JEA (dffa7e) — 2/19/2010 @ 8:47 amJEA – your description is not really all that accurate, leaving the impression that the school just did this all willy-nilly, as opposed to their statement which indicates that they believed the computer to be stolen or missing. That may or may not be true, but it certainly does not appear to be the case that they were just randomly spying or secretly monitoring people.
JD (c62c91) — 2/19/2010 @ 9:01 amIf there was no prior court authorization, this could be federally criminally prosecuted for an illegal interception of electronic communication, 18 USC 2511, or video voyeurism, 18 USC 1801.
509th Bob (58dde3) — 2/19/2010 @ 10:17 amThere was no electronic communication to intercept. If it was listening in, it could be an interception of an oral communication.
imdw (33ae78) — 2/19/2010 @ 11:11 amBut oral communication isn’t really communication…
Slick Willy (176445) — 2/19/2010 @ 12:08 pmThis whole thing is just plain wrong. I’m not surprised imd-dumbass is covering for education union goons.
No mention made of what the picture was. What if the picture snapped by the webcam was underage students engaging in sex?? Child porn if it is shown to others. Most definitely an invasion of privacy.
This school district is in deep kimchi. I guess the rich will get richer.
PCD (1d8b6d) — 2/19/2010 @ 12:12 pm“But oral communication isn’t really communication…”
Its covered by the wiretap act.
“This whole thing is just plain wrong. I’m not surprised imd-dumbass is covering for education union goons.”
You should read the Orin Kerr comment thread. You’ll find similar comments to mine — discussing the law with a genuine interest. You may also find people having knee jerk reactions when they read an assertion they do not like.
imdw (1af0fd) — 2/19/2010 @ 2:00 pmimdw says: “…Its covered by the wiretap act…”
Orin Kerr says: “…the Wiretap Act doesn’t apply to video images…”
Gee!
AD - RtR/OS! (02a1f9) — 2/19/2010 @ 2:18 pmWhom am I to believe?
17.But oral communication isn’t really communication…
Comment by Slick Willy — 2/19/2010 @ 12:08 pm
imdw missed the reference
it depends on what the meaning of “is” is
MD in Philly (e347b2) — 2/19/2010 @ 2:31 pmMD, somewhere a brain is missing it’s idiot. The one that missed the slick willie comment.
peedoffamerican (237e4d) — 2/19/2010 @ 3:12 pmThey could have installed some kind of GPS trackers if all they wanted was to find stolen computers. I call “Shenanigans”.
Scratcher (c7c5d8) — 2/19/2010 @ 3:55 pm“Orin Kerr says: “…the Wiretap Act doesn’t apply to video images…””
But it does apply to “oral communication.” Which was my point: go read him again. I mean, dear god it was the next sentence:
“The Wiretap Act applies to bugging audio equipment (“oral communications”), intercepting phone calls (“wire communications”) and intercepting computer communications (“electronic communications.”).”
imdw (c5488f) — 2/19/2010 @ 5:23 pmComment by imdw — 2/19/2010 @ 5:23 pm
Orin Kerr’s posting @ VC…
“…1. The federal Wiretap Act cause of action doesn’t work. The computers allegedly took still images of the student, but the Wiretap Act doesn’t apply to video images. The Wiretap Act applies to bugging audio equipment (“oral communications”), intercepting phone calls (“wire communications”) and intercepting computer communications (“electronic communications.”). But the alleged interception here is of a video image without sound, and the Wiretap Act doesn’t apply. See, e.g., United States v. Koyomejian, 970 F.2d 536, 539 (9th Cir.1992); United States v. Torres, 751 F.2d 875, 880 (7th Cir.1984)…”
Please tell Dr. Kerr where he is wrong.
AD - RtR/OS! (02a1f9) — 2/19/2010 @ 6:09 pmOMG can’t you read?
“Please tell Dr. Kerr where he is wrong.”
He’s right. Like when he says:
“The Wiretap Act applies to bugging audio equipment (“oral communications”)”
Which is what I said — Oral communications are covered by the wiretap Act. Like I said here:
“If it was listening in, it could be an interception of an oral communication.”
Now, what is it that I’ve said that contradicts him? Because I think he’s right and I agree with his descrption of the law.
imdw (de7003) — 2/19/2010 @ 6:39 pmSo, you are saying that a video image is the same as an oral communication?
AD - RtR/OS! (02a1f9) — 2/19/2010 @ 6:40 pm“So, you are saying that a video image is the same as an oral communication?”
Why would I say that? Slick willy said:
““But oral communication isn’t really communication…””
And said “it” — oral communication — is covered by the wiretap act.
imdw (017d51) — 2/19/2010 @ 6:49 pmOrin Kerr said that a video communication is not covered by the wiretap statutes, “…The Wiretap Act applies to bugging audio equipment (“oral communications”), intercepting phone calls (“wire communications”) and intercepting computer communications (“electronic communications.”). But the alleged interception here is of a video image without sound, and the Wiretap Act doesn’t apply…”, yet you insist that he said otherwise, and insist that video is the same as oral (even though the evidence presented up to this point is that of a video only transmission, sans audio), so that therefore the stature applies.
Is that what you are saying?
And, what if the Hell does Bubba have to do with this (rhetorical question, please – please – do not answer)?
AD - RtR/OS! (02a1f9) — 2/19/2010 @ 7:16 pm…crickets….
AD - RtR/OS! (02a1f9) — 2/19/2010 @ 7:24 pm“yet you insist that he said otherwise”
no. I just quote this: “The Wiretap Act applies to bugging audio equipment (“oral communications”)” Because we were talking about oral communications.
“and insist that video is the same as oral”
No.
see, in both cases you use the word “insist” But you don’t really have any words that I have written that “insist” on those things. There’s very little I’ve said, it’s fairly uncontroversial, and it completely agrees with what Orin Kerr said. Go back, read what I wrote, and try to get the very simple meaning htat matches with what Kerr wrote.
imdw (05d41e) — 2/19/2010 @ 9:14 pm“…But the alleged interception here is of a video image without sound, and the Wiretap Act doesn’t apply…”
How did Dr. Kerr confuse video and oral?
AD - RtR/OS! (02a1f9) — 2/19/2010 @ 10:00 pm“How did Dr. Kerr confuse video and oral?”
He didn’t. Can you quote something that says he did?
imdw (1b4b28) — 2/19/2010 @ 10:07 pmAlso, I don’t think he’s a Dr.
imdw (1b4b28) — 2/19/2010 @ 10:11 pmNo, I don’t think he confused it, but you sure are confused; so much so, that you cannot even absorb the simple meaning of what he has written, which is summarized in the quote “…the Wiretap Act doesn’t apply…”.
fm wiki…”… B.S.E. in Mechanical Engineering from Princeton University, his M.S. in Mechanical Engineering from Stanford University, and his J.D. from Harvard Law …”
J.D. – Juris Doctor.
AD - RtR/OS! (02a1f9) — 2/19/2010 @ 10:35 pm“No, I don’t think he confused it, but you sure are confused; so much so, that you cannot even absorb the simple meaning of what he has written, which is summarized in the quote “…the Wiretap Act doesn’t apply…”.”
Jeebus christ how many times do I have to say it that I agree with EVERYTHING he wrote? you can’t find anything i said that disagrees with him, can you?
“J.D. – Juris Doctor.”
I’ve never heard of using the title “Dr.” for a law school graduate. Maybe Dr nk and Dr beldar and Dr. patterico can give us their opinion?
imdw (8f8ead) — 2/20/2010 @ 7:20 amThe school district has descended to weasel-wording as the hole deepens. In their latest web update, the following appears:
Clearly, of the two questions posted, the District has answered the first one, saying that the assistant principal did not have the direct ability to activate the remote spy camera or receive its signal. But that’s really a minor point. The plaintiff claims that she confronted him about “improper activity” (he say on a CBS News interview that it had to do with drugs, which he denies), and corroborated her claim with photos from his webcam.
What does the school district say?
Q: Did she utilize a photo taken by a school-issued laptop to discipline a student?
A: We believe that the administrator at Harriton has been unfairly portrayed and unjustly attacked in connection with her attempts to be supportive of a student and his family.
Move to strike as non-responsive, Your Honor.
Did this assistant principal possess, and use, photos from the plaintiff’s laptop webcam in confronting him, or not? It’s not a trick question.
And the truth is that by this time the jury will already have reached its conclusion — Yes, she did have the photos, and yes, the school district is not being honest about it.
VG
Voiceguy (d05b29) — 2/20/2010 @ 8:49 am“…I agree with EVERYTHING he wrote…” – Imadickwad @ 2/20-0720
“…Its covered by the wiretap act…” – Imadickwad @ 2/19-1400
“…But the alleged interception here is of a video image without sound, and the Wiretap Act doesn’t apply…”
Prof.Orin Kerr posting at The Volokh Conspiracy
?????????????????????????????????????????
Or, why you aren’t taken seriously.
AD - RtR/OS! (e05987) — 2/20/2010 @ 9:15 amBye!
““…Its covered by the wiretap act…” – Imadickwad @ 2/19-1400”
You do realize that I was responding to someone talking about ‘oral communications’ here. Which is in agreement with what Kerr says — oral communications are covered by the wiretap act. That’s what he said. And it is also what I said.
I’ve gone ahead and made this clear, explaining it to you once already. But you dind’t get it the first time, and you didn’t get it when I made it clear again. Instead you wrote that I was “insisting” on the opposite of what I was trying to explain.
Are you going to get it this time? lets see.
[note: fished from spam filter. –Stashiu]
imdw (6d1481) — 2/20/2010 @ 11:52 am