by Jake Meyer

Everyday for two weeks when high school student Blake Robbins left his school’s campus and went home for the day, the Lower Merion School District covertly followed him home, tracking his position, snapping photographs of him and his family, and recording his activity on his laptop computer.  The school district didn’t send a secret agent to keep tabs on Robbins, but instead had turned his school issued laptop into a remotely controlled surveillance device.  Robbins’ laptop captured over 400 images, screenshots of his activity on his laptop while he typed to friends through an internet messenger service, and photos taken through the laptop’s webcam of Robbins while he slept, pictures of him partially dressed after he got out of the shower, and photos of Robbins’ father and friends.  The laptop transmitted its IP address allowing the school to track its physical location.  The school district had installed this tracking software, TheftTrack, on all of the school issued laptops to be activated to retrieve laptops that had been reported stolen.  Robbins’ original laptop was returned to the school with a broken laptop and the school issued him a loaner laptop.  School district officials knew that he was in possession of the loaner laptop and that it had not been stolen, but activated the monitoring software anyway.  Robbins later learned that the webcam had been activated on his laptop when he was confronted at school by the assistant principal about his possible drug use – it turned out that the webcam had captured him eating Mike and Ike candy.

Blake Robbins and his parents filed a lawsuit against the Lower Marion School District.  The Robbins lawsuit was filed individually as well as on behalf of the class of all similarly situated persons – the students and families of students that had received a laptop with a web camera from the Lower Marion School District.  (The Robbins later moved to have the action certified as a class action and have the Robbins represent the class because joinder of the members of the class would be impractical because of the number of class members.)   The complaint alleged that the school district had “been spying on the activities of Plaintiffs and Class members by [the school district’s] indiscriminate use of and ability to remotely activate the webcams,” and that the “School District has the ability to and has captured images of Plaintiffs and Class members without their permission and authorization, all of which is embarrassing and humiliating.”

The lawsuit created controversy in the community.  A group of parents held a meeting on March 2 to discuss strategies to prevent the class action suit from moving forward.  More than 100 parents attended the meeting and nearly 400 families of high school students signed a petition opposing the lawsuit.  Parents who opposed the suit argued that the lawsuit would cost the school millions of dollars.  Some parents argued that it was enough that those responsible “already admitted that they made a mistake.”  On March 18, 2010, six students and their parents filed a motion to intervene in the lawsuit.  The students and parents intervened in the case to assure that their privacy rights will not be violated again and to “seek an end to the litigation . . . to reduce monetary costs to the district.”  The intervenors only sought an injunction permanently prohibiting the district from remotely accessing laptops “in a manner that constitutes an unreasonable search of students and their families” and an order limiting the dissemination of the web camera photos obtained.  As a result of discussions with the interveners, all parties, including the Robbins, agreed to an order entered on May 14, 2010 that enjoined the District from remotely activating webcams on student laptops and required the District to provide students and parents with the opportunity to view the previously captured images and required that all images captured by the web cameras be destroyed at a specific date after the viewing process is complete.

A second lawsuit was filed by another student, Jalil Hasan, against the Lower Merion School District on July 27, 2010.  Hasan’s complaint alleged invasion of privacy against the school district.  More than 1,000 images were captured by Hasan’s computer — 469 webcam photographs and 543 screen shots over the course of two months.   The photos included shots of him in his bedroom and of other family members and friends.

After the filing of the Robbins lawsuit the school district ordered an investigation to be performed by the law firm the school district had retained to represent it in the case.  Despite being retained as counsel, the law firm titled its report released on May 3rd, 2010, an “independent investigation.”  The report found that the laptop monitoring software, TheftTrack, was activated 177 times during the 2008-2009 and 2009-2010 schools years.  One hundred and one of those activations were only to use the IP address tracking feature and did not involve the collection of images.  Seventy-six of the activations involved capturing images from the laptop, resulting in the collection of 30,564 webcam photographs and 27,428 screenshots.  The report found that a majority of the photos, 87%, were because the TheftTrack software was never deactivated on 12 laptops after they were recovered.   According to interviews with the IS staff conducted by Ballard Spahr, the capturing of web camera photos could not be remotely controlled, but instead were automatically taken every 15 minutes.

The report acknowledged that investigators were unable to find explanations for a number of the tracking activations.  There were 10 activations for which investigators were unable to determine why tracking was initiated, which resulted in thousands of photos and screenshots.  In 7 of these 10 cases the investigators were unable to recover any images at all from the remaining district record.  A week’s worth of photos taken from Blake Robbins laptop were not turned over to the family because the school district said they were not able to recover them.  The report found that covert cameras were used both for missing computers and for unknown purposes, and that the district left such webcams activated for long periods in cases “in which there was no longer any possible legitimate reason” for capturing images.

The report found that the district did not disclose the existence or capabilities of the monitoring software to the parents or students in advance nor did it adopt “official policies or procedures governing use of the TheftTrack feature by IS [Information Services] personnel.”  The report described the Information Services (IS) department as the “Wild West” because “there were few official policies and no manuals of procedures, and personnel were not evaluated regularly.”  Further, the report found that members of the District’s Board and top-level District administrators did not understand how TheftTrack worked or were aware that the program could collect large quantities of webcam photographs.

There was concern that these webcams could have captured nude photos of students.  The complaint by Robbins alleged that “many of the images captured and intercepted may consist of images of minors and their parents or friends in compromising or embarrassing positions, including, but not limited to, in various stages of undress.”  For example, one student, Savannah Williams, a sophomore at the school, reported that she regularly kept her laptop open in her bedroom while she was “getting changed, doing [her] homework, taking a shower, everything.”  The report determined, however, that while some of the photographs contain content that the individuals appearing in them would find “personal in nature” and “inherently troubling,” none of the photographs contain “what would commonly be considered ‘nakedness.’”  When you consider, however, that there were gaps in the data where certain photos could not be recovered including the missing week of photos taken by Robbins’ laptop’s web camera, it seems possible that the school district conveniently couldn’t recover some photos that “would commonly be considered ‘nakedness.”’

The report found evidence that IS employees took the use of TheftTrack lightly and acted unprofessionally and even enjoyed the voyeuristic nature of the program.  For example, after an incident where laptops were stolen from a locker room, IS Coordinator Carol Cafiero emailed IS staff that TheftTrak had captured images from one of the stolen laptops.  An IS technician wrote an e-mail back “This is awesome.  It’s like a little LMSD [Lower Marion School District] soap opera,” Ms. Cafiero responded, “I know, I love it!”  But despite the frequent use of the monitoring software including instances where there had been no theft, the lack of official policies for its operation by the IS department, and the unprofessionalism of the IS staff using the software, the so-called “independent investigation” by the school district’s retained counsel, “found no evidence that the feature was used to ‘spy’ on students.”

The FBI also conducted an investigation of the Lower Merion School District.   The investigation lasted over six months and sought to determine whether the district broke any criminal wiretap laws.  The FBI interviewed District IS employees who had the authority to activate the TheftTrack software.  On August 17, 2010, federal prosecutors announced that they closed the case and declined to bring any charges against the district.  U.S. Attorney Zane Memeger stated that “for the government to prosecute a criminal case, it must prove beyond a reasonable doubt that the person charged acted with criminal intent.  We have not found evidence that would establish beyond a reasonable doubt that anyone involved had criminal intent.”

Although the investigations found that the district’s employees were not “spying” on the students and that employees did not have criminal intent, the district was ordered to pay attorneys’ fees and ultimately the parties reached a settlement agreement.  On August 30, 2010, the Plaintiffs’ attorney was awarded over $260,000 in legal fees. Senior U.S. District Judge Jan E. DuBois said the Plaintiffs’ lawyer, Mark Haltzman, deserved to be paid for work that led to a preliminary injunction against the District in May 2010.  In October 2010, the parties reached a settlement agreement of $610,000 to resolve the two lawsuits.  The settlement called for Robbins to get $175,000 and the second student who filed suit, Jalil Hasan, to get $10,000, and their lawyer, Mark Haltzman, to get $425,000 for his work on the case.

Since the case settled it won’t serve as precedent for future cases involving the remote access of student’s laptop at schools or other possible invasions of privacy.  But the case still likely helped to protect the privacy interests of students.  The case was highly public and received a lot of media attention, highlighting the privacy issues these technologies raise.  Senator Arlen Specter was paying attention.  Specter said that the “incident raises a question as to whether the law has kept up with technology.”  Specter introduced the “Surreptious Video Surveillance Act of 2010” in April 2010 to amend the federal Wiretap Act to clarify that it is illegal to capture silent visual images inside another person’s home.  Russ Feingold, a co-sponsor, commented that “[m]any Americans would be surprised to learn that there is no federal statute to protect them from being secretly videotaped in their homes.