DA op-ed: Surveillance cameras in school

Know the legal ins and outs to avoid (over)exposure
By: | Issue: February, 2019
January 17, 2019

As surveillance cameras become even more ubiquitous in schools, savvy administrators need to be aware of not only the rapidly evolving technology, but also the evolving legal landscape.  According to the National Center for Education Statistics, more than 80 percent of public schools—and more than 94 percent of high schools—in the U.S. used security cameras to monitor students during the 2015-2016 school year, nearly doubling the number of schools using cameras a decade earlier.  While surveillance cameras have become one of the cornerstones of school safety and security plans, they also raise legal issues that can leave administrators in a quandary.

Knowledge of some of the basic legal principles is vital for administrators when navigating the tension between student and employee privacy interests, security interests, and the public’s interests in transparency.  This knowledge also equips administrators to identify the particularly sticky situations where it is prudent to consult with legal counsel. For instance: Can a zoom lens on a surveillance camera be used to evaluate whether a student possesses contraband?  Is it appropriate to disclose surveillance footage to parents of a student injured in a fight? Should footage be disclosed in response to media and other public inquiries? Are there special concerns about allowing law enforcement “live feed” access? This article provides a brief overview of the guiding legal principles, pitfalls to avoid and practical considerations.

Guiding legal principles

Fourth Amendment of the U.S. Constitution.  The Fourth Amendment prohibits governmental entities, such as public schools, from conducting unreasonable searches.  Courts that have considered whether surveillance recordings violate the Fourth Amendment have scrutinized the scope and manner of the recording.  When video surveillance recordings are made in locations where individuals have a low expectation of privacy—such as when they are in public places and are their movements and actions are in “plain view”—courts have rejected claims that such recordings are unconstitutional searches.  On the other hand, recordings made in locations where individuals have a higher expectation of privacy—such as in bathrooms and locker rooms—are more likely to be an unconstitutional invasion of privacy. Thus, courts have generally upheld video surveillance recordings in school hallways, stairwells, school buses, school parking lots, and even classrooms.   The use of telescopic lenses and other enhancements to acquire information that may not be immediately apparent to the human eye creates some uncertainty for school administrators as there has been little litigation on this specific issue. In evaluating an individual’s expectation of privacy, courts regularly consider whether and how notice of the recording was provided.  Thus, school districts should notify the school community—through policy, statements in handbooks, and signage—that cameras are located throughout school property and individuals should anticipate having their images captured.

The Electronic Communications Privacy Act and state wiretapping laws.  While courts have found video surveillance recordings to be constitutionally permissible where an individual has low or no interest of privacy, the use of audio surveillance recordings raises other legal issues and potentially creates criminal liability for unwary administrators.  The federal Electronic Communications Privacy Act of 1986 prohibits the intentional interception of any oral communication, except where one party to the conversation has consented to the recording. This exception is known as the “one-party consent” rule. While most states have adopted the “one-party consent” rule, several states have adopted a “two-party consent” rule.  In these states, all parties to a conversation must consent to the recording to avoid criminal liability. Districts considering audio surveillance may attempt to mitigate risk by posting conspicuous signage to notify individuals that conversations may be recorded, and that consent to such recording is implied. However, school administrators should proceed cautiously when considering audio surveillance and consult with legal counsel.

Family Educational Rights and Privacy Act.  FERPA requires schools receiving federal funding to preserve the confidentiality of student education records and the personally identifiable information therein.  FERPA also provides parents and eligible students the right to access education records. Images of students captured on surveillance recordings qualify as education records when photo or video is “directly related to a student” and “maintained by the educational institution” (or an entity acting for the school). Whether a recording is “directly related to a student” is a context-specific determination considering the following factors:

  • whether the recording is used for disciplinary action involving the student (including a victim);
  • whether the recording depicts an activity that would reasonably result in the use of disciplinary action, shows a student violating the law, or shows a student getting injured, attacked, victimized, ill or having a health emergency;
  • whether the school intends to make a specific student the focus of the recording (e.g., for ID photos); or
  • whether the content contains personally identifiable information from a student’s education record.  

A recording will not be considered “directly related to a student” when a student’s image is simply incidental to the activity depicted in the recording (e.g., window dressing or background) or when a student is shown participating in school activities open to the public and the recording does not focus on any specific focus student.  Moreover, surveillance recordings that are created and maintained by a school’s law enforcement unit are not education records and, therefore, not confidential. If, however, those recordings are provided to and then maintained by the school, they become education records.

Open Records Laws.  All states have adopted laws providing individuals access to public records. While the breadth of access provided by these laws varies from state to state, many states have defined public records broadly to encompass video images.  Thus, school surveillance recordings are often the subject of public records requests by the media, citizen groups, or other third parties.

Parent access to surveillance recordings

School districts commonly receive requests from parents to view surveillance recordings capturing images of their child.  When a surveillance recording qualifies as an education record—that is when it is “directly related to a student” and is “maintained by the educational institution”—it must be disclosed to the parents of the students for whom it is an education record.  This is true even when the recording is an education record for more than one student. In that case—for instance, when surveillance footage captures several students engaging in a fight on a school bus—schools are required, according to 2018 guidance from the Family Policy Compliance Office (which is the division of the U.S. Department of Education charged with administering FERPA), to redact or segregate the portions of the recording directly related to other students prior to providing access, if it is reasonable to do so without destroying the meaning of the recording.  If such redaction or segregation is impossible, then the parents of each student to whom the recording directly relates have the right to access the entire record even though it directly relates to other students. While FERPA does not generally require schools to provide copies of education records, it does not violate FERPA to provide copies. Schools may charge parents for copies (except where such fee may effectively prevent a parent from exercising the right to inspect and review records), but may not charge for costs associated with retrieval, redaction or segregation.  

Law enforcement access to recordings

School districts also frequently receive requests from law enforcement to access surveillance recordings that capture student misconduct.  Unless the recording is created and maintained by a school’s law enforcement unit (and, therefore, does not qualify as a FERPA-protected record), schools are prohibited from disclosing such recordings without having first secured written consent from the parents of the students to whom the recording directly relates.  While there are some exceptions to this prohibition, such as for a health or safety emergency or in response to a court order or subpoena, those exceptions are specifically described in FERPA and generally narrow. Whether allowing law enforcement to access a “live feed” of a surveillance camera violates FERPA creates additional quandaries for school officials.  Arguably, if the “live feed” is not “maintained by” the school, the feed will not qualify as an education record, but this position remains somewhat of an open question and could be context specific depending on any delays in transmission. One possible solution may be to permit “live feeds” only during health or safety emergencies. Thus, as schools are working closer than ever with local law enforcement to address school security, it is important for school officials to involve legal counsel in these conversations and use these collaborations as an opportunity to clarify expectations regarding information and record sharing.        

Third party access to recordings

In addition to fielding requests for surveillance recordings from parents and law enforcement, school districts also often receive requests pursuant to state open records laws from the media, citizen groups, and other third parties.  Typically, recordings that qualify as FERPA-protected education records are excepted from the disclosure requirements of open records laws. However, some states may require disclosure of the portions of the recording that are not FERPA-protected.  Whether a recording must be disclosed depends on a variety of factors, including: state specific exemptions and definitions, whether the recording contains images of students at all (images of employees only will generally not implicate FERPA), whether the record was created and maintained by a school’s law enforcement unit, whether the recording is “directly related to a student” under FERPA, whether the recording is “maintained by” the school, whether a school district possesses technology to obscure images and information that is FERPA-protected, and whether the school reasonably believes the requestor knows the identity of the student to whom the recording relates and, therefore, redaction would be useless.

Bottom line

While advances in technology have made surveillance cameras an even more important part of school security, school administrators should consider taking the following steps to help keep pace with the ever-evolving legal landscape:

  • developing and publishing policies describing the purpose of surveillance cameras and the parameters for use;
  • installing cameras only in areas where individuals have a low expectation of privacy;
  • notifying the school community of the use of surveillance cameras via policies, handbooks, websites, newsletters, and conspicuous signage;
  • consult with legal counsel prior to enabling audio recording;
  • establish protocols for maintaining equipment and retaining recordings and apply them consistently;
  • consult the Family Policy Compliance Office’s 2018 FAQs on Photos and Videos Under FERPA, available at DAmag.me/spgov, when evaluating requests for access from parents, law enforcement, media and other third parties; and
  • develop protocols governing requests for disclosure, including the handling of requests for copies.

Amy Steketee Fox is a former public educator who practices school and employment law at Church Church Hittle + Antrim in Fort Wayne, Indiana.

 


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