Big Brother as Parent: Using Surveillance to Patrol Students' Internet Speech

Abstract: With the pervasiveness of the Internet in students' lives, schools are frequently disrupted by their students' online speech, whether through threats of violence, cyberbullying, or discussion of self-harm. To combat and minimize these disturbances, some schools are turning to third-party surveillance companies to monitor students' Internet posts for potentially harmful speech. The U.S. Supreme Court has never addressed a school's relationship to its students' Internet postings. In the absence of Supreme Court guidance, lower courts rely primarily on a 1969 free speech ruling from Tinker v. Des Moines Independent Community School District, which asks whether a student's speech substantially disrupts the educational process. If it does, a school may punish the student for that speech. This Note analyzes the effects that Internet surveillance could have on students and advocates that the Supreme Court grant certiorari to student Internet speech cases and adopt a risk of substantial disruption standard. Additionally, proactive schools should substitute Internet surveillance with an increase in tech-savvy counselors and social media education, each of which may positively guide students toward responsible Internet behavior.INTRODUCTION"Drink bleach and die," one bully wrote to twelve-year-old Rebecca Ann Sedwick.1 "Why are you still alive?" another asked.2 A third text message sent by a peer to Sedwick's cell phone read, "Can u [sic] die please?"3 After over one year of online and in-person bullying, Sedwick's bullies' requests were answered as she leapt to her death at an abandoned cement factory near her home in central Florida.4 Though Sedwick had barely attended middle school, she had experienced deep pain.5 The chilling words remained in her journal as proof following her suicide: "Every day more and more kids kill themselves because of bullying. How many lives have to be lost until people realize words do matter?"6Following Sedwick's September 2013 suicide, fingers pointed everywhere: at her parents for not monitoring her Internet and cell phone usage, at her school for not identifying her bullies, at the young girls who bullied her, and at the bullies' parents for not controlling their children. 7 Five weeks after her death, a twelve-year-old former friend of Sedwick's and a fourteen-yearold former schoolmate were arrested in connection with her death and charged with aggravated stalking, a third-degree felony in Florida.8 The most damning evidence against either was a Facebook post allegedly authored by the fourteen-year-old, which stated, "Yes IK [I know] I bullied REBECCA nd [sic] she killed her self [sic] but IDGAF [I don't give a f-]."9 Upon seeing the blatant disregard for human life in this post, Polk County Sheriff Grady Judd moved quickly to apprehend the fourteen-year-old author and her twelve-year-old friend.10 Sheriff Judd's justification for prompt action was fear that the girls would bully others.11Today's preteens have never known a world without the Internet.12 Its accessible nature permeates all aspects of their lives, from use as an educational aid in schools to entertainment at home.13 As students learn these and other technological innovations, parents often struggle to keep pace with their techsavvy children.14 Not knowing what technology exists, coupled with an inability to monitor that technology, leaves many children without parental controls, producing an ongoing opportunity for children and teenagers to communicate-for better or for worse-with one another.15 What may result is a seemingly limitless virtual playground that emboldens students, creating a troubling amount of freedom for such malleable minds.16 Absent oversight, students are left to their own devices, able to make independent, potentially dangerous moves in their otherwise micromanaged worlds.17 The independence that students exercise may simply be speech, but as demonstrated through the case of Rebecca Sedwick, speech may target other students and leave permanent scars. …