Three U.S. Senate Democrats are hoping to close a loophole in federal wiretapping laws that allowed a suburban Philadelphia school to spy on students via a laptop camera, a case indicating how advances in technology continue to present problems older laws aren’t sufficient to handle.
“I think [the proposed legislation] is a necessary patch on a huge legislative problem to the extent which the current capabilities of information technology make it difficult to protect a person’s privacy rights,” said Jeffrey Johnson, partner with the law firm Pryor Cashman in New York City.
The Surreptitious Video Surveillance Act (S. 3214), introduced in April by Sens. Arlen Specter (D-PA), Russ Feingold (D-WI), and Ted Kaufman (D-DE), would institute the nation’s first explicit rules outlawing video surveillance. The bill was written just weeks after the Lower Merion School District was caught taking pictures of students in their homes via laptop cameras on school-issued computers.
Thousands of Pictures
In response to a lawsuit filed by the family of Lower Merion student Blake Robbins, the school district claimed it snapped pictures remotely to track down computers it thought were stolen. But in late April the school district’s lawyer admitted administrators had snapped at least 56,000 webcam photos in an effort to find approximately 80 “missing” laptops.
“It’s clear there were students who were likely captured in their homes,” lawyer Henry Hockeimer, who represents the Lower Merion School District, told The Philadelphia Inquirer.
The Robbins family attorney, Mark Haltman, says the district secretly and remotely activated the webcam on the MacBook 400 times during a 15-day period last fall—sometimes while Blake Robbins slept in bed or was half-dressed.
The FBI is now pursuing a criminal investigation against the Lower Merion School District on possible wiretapping violations.
Updating the Law
Under Specter’s bill, persons caught capturing and storing video without the taped user’s consent would face the same civil and criminal penalties as those who wiretap an unsuspecting caller’s phone.
The bill, if approved, would update the current Wiretap Act, which was drafted in the 1960s, long before today’s modern video-ready Internet.
Specter says revising wiretap laws is essential “to safeguard Americans from unwanted intrusions in their homes where there is a reasonable expectation of privacy.”
Johnson calls Specter’s bill an “important, necessary step to protect privacy.”
“There is no way of knowing whether [Web camera] photos are taken with innocent intentions or for a more nefarious reason,” Johnson said. “The school district should never have taken those photos, regardless of the reasons why.”
Harold J. Krent, dean of the Chicago-Kent College of Law, says Specter’s bill does not go far enough.
“This is an important step forward, but it doesn’t include any prohibition against capturing wireless video,” Krent said, noting unauthorized third parties are increasingly intercepting wireless video transmissions.
Tip of the Iceberg?
Although the Lower Merion case has received much attention, Johnson suggests other school districts, government agencies, and even private companies might be engaging in secret photographing.
“The ‘Big Brother’ problem here is that it might not be just one person [seeking the surveillance],” Johnson said. “In this case it was a school. But because this activity is not explicitly illegal, other state or local governments could be doing this—or large corporations such as a Microsoft or a Google.”
Anthony Gregory, a research analyst with the Independent Institute in Oakland, California, says the “most ominous implication for civil liberties in this story is that it signals a generally high cultural threshold for government invasions into personal life.”
“That even the beloved public school system would engage in something so Orwellian should immediately spark a profound national debate on the nature of government, its role in our lives, and whatever limits should be placed on surveillance,” he said.
“But Americans have come to expect this from government,” Gregory added. “A surveillance state has been growing in America for decades. But until recently, few believed there would be general surveillance of citizens in America, much less public school authorities spying on pupils in their own bedrooms.
“It is time for deep contemplation of our public institutions and their power over people’s lives,” he said.
District’s Denials Grate
Scott Testa, a professor of business administration at Cabrini College in Philadelphia, said the “initial reaction from the school district was deny, deny, deny.” And that only made the situation worse, he says.
“The school district handled this as badly as they could have handled it,” Testa said. “They denied it, then hid behind their lawyers. When you have people do things like this, then you need laws to protect people.”
Making matters worse, he added, was that taxpayer dollars were spent to secretly monitor students.
“Any law that protects civil liberties is important,” Testa said. “But the school is financed by taxpayers and the photos were being taken in the home, outside of the school environment. This was a time bomb waiting to go off.
“If the allegations are true, then there will be some significant [legal] liabilities” for the school district, he added.
Ken Westin, founder and CEO of ActiveTrak, a Portland, Oregon-based maker of a tracking technology similar to the ones on the laptops in question, says tracking software can be a useful tool. But it must be used carefully and legitimately.
“If these allegations are true, then someone was given access to systems that they shouldn’t have,” Westin said. “The implementation of the tracking technology is the culprit, not the technology itself.
“Unfortunately, when something like this Pennsylvania case happens, all of us who are in this market are held accountable,” he added.