As technology becomes more sophisticated, our government engages in more online surveillance—this is nothing new. But because of the broad and opaque nature of government surveillance, many of us don’t know if this surveillance is directly affecting us. Though we may be uneasy, the possibility that we ourselves are targets is “highly speculative,” as the U.S. Supreme Court reassured us in Clapper v. Amnesty International USA.
American public school students have a different reality. For many students whose schools have contracts with private surveillance companies, the notion that they are being watched is far from speculative—it is certain. In fact, public schools boast about their constant surveillance of students, which involves combing through their documents, emails, chats, browsing history, and more, during and outside of school hours. Schools assure parents, community members, and students themselves that such pervasive monitoring is necessary for safety and mental health.
This Article questions the ability of student surveillance to achieve its purported goals, and it outlines four core harms of such surveillance: a degradation of privacy, a chilling effect on expression, the normalization of surveillance, and discrimination. Next, it explores avenues by which the legality of such surveillance has been challenged. It concludes that none of these avenues has been effective thus far.
Therefore, this Article analyzes a surprisingly underexplored mechanism to challenge student surveillance: the Constitution. In particular, it examines current First and Fourth Amendment doctrines, assessing their respective abilities to address the harms of these technologies. Because of the Fourth Amendment’s potential to address surveillance after Carpenter v. United States, it may seem natural for a Fourth Amendment challenge to student surveillance to be more successful than a First Amendment one. But this Article concludes that because of the especially important expression and informational harms implicated by school surveillance, the First Amendment has more potential to tackle the harms that surveillance has on students.
