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A Long Island judge has dismissed a $6 million defamation action filed by a teenager against four former classmates who set up a Facebook page on which they joked that the teen used heroin and contracted AIDS by having sex with animals in Africa.

The judge ruled that no reasonable person could believe that the allegedly defamatory statements were facts.

"A reasonable reader, given the overall context of the posts, simply would not believe that the Plaintiff contracted AIDS by having sex with a horse or a baboon or that she contracted AIDS from a male prostitute who also gave her crabs and syphilis, or that having contracted sexually transmitted diseases in such manner she morphed into the devil."

"Taken together, the statements can only be read as puerile attempts by adolescents to outdo each other."

The judge also dismissed a negligent-supervision claim against the teenagers' parents, saying that a computer does not constitute, as required by New York case law, a "dangerous instrument." "To declare a computer a dangerous instrument in the hands of teenagers in an age of ubiquitous computer ownership would create an exception that would engulf the rule against parental liability," the judge concluded.

The plaintiff in Finkel v. Dauber sought $3 million for the damage to her reputation and character and another $3 million in punitive damages.

In June 2009, a Manhattan judge granted Facebook's motion for summary judgment on the basis of the Communications Decency Act of 1996 which provides immunity to service providers for "information originating with a third-party user."

In dismissing the case, the judge found that "while the posts display an utter lack of taste and propriety, they do not constitute statements of fact. The entire context and tone of the posts constitute evidence of adolescent insecurities and indulgences, and a vulgar attempt at humor. What they do not contain are statements of fact."

This case illustrates the continuing difficulty in applying even long-established legal principles to cyberspace where hyperbole and conjecture are contagious. According to this court, the more sensational the statement, the more protection the poster will enjoy. In a world where almost anything is possible, and most of it is posted online, individuals seemingly enjoy less and less protection from even the most outrageous and sensationalistic statements.

In a recent little noticed unpublished First Circuit decision, former USSC Justice Souter held that "whatever the scope of a school’s responsibility towards its students . . . there is no apparent constitutional obligation to impose physical restraint upon teenagers not at immediate risk of harm to themselves or others."

This case was brought by mothers of teenagers who were not physically restrained by school officials from leaving their schools during instructional hours. The mothers brought action under state law as well as 42 U.S.C. § 1983 and § 1988 seeking monetary and injunctive relief for violating Fourteenth Amendment due process, the mothers’ right to preserve family integrity and the children’s right to enjoy freedom from abuse and neglect.

The school system explained their policy of permissiveness by referring to a state education regulation limiting use of lawful physical restraint to instances in which children’s unfettered behavior would raise a risk of “assault or imminent, serious, physical harm” to themselves or others; absent such danger, the prevention of truancy would not be worth the burden of defending the liability claims that would doubtless eventuate.

The magistrate judge hearing the case below recognized that the schools’ refusal to confine children to school premises during school hours effectively converted the state’s compulsory attendance law into the children’s option to wander off into trouble that the parents could not effectively prevent. He suggested that the mothers consider the possibility of relief from the general regulation through Individual Educational Plans for their children as special education students.

The mothers argued that inadequate supervision in schools infringes their rights to maintain the integrity of their families under Meyer v. Nebraska, 262 U.S. 390 (1923), and Pierce v. Society of Sisters, 268 U.S. 510 (1925), cases that held it to be beyond the power of states to limit a parent’s choice to provide foreign language instruction in elementary schools or to resort to private education. The Court found, however, that these cases recognized a parent’s liberty to be free from state interference with certain education choices, not a right to require state or local government to run public schools in a way a parent might think they ought to be administered. Any actionable interference with family integrity must be “directly aimed at the parent-child relationship.” Manarite v. Springfield, 957 F.2d 953, 960 (1st Cir. 1992).

Judge Souter further found that the Supreme Court’s discussion in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 199-200 (1989), is on point: “[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being." According to Souter:

The situation of the children in this case is not even close to facts that would thus raise a state obligation. There is neither restraint of the child (that indeed is the very complaint), nor any practice or circumstance rendering the child unable to care for himself, nor failure to provide basic human needs of food, clothing, shelter, medical care or reasonable safety. As the Supreme Court later observed in Vernonia School District 47J v. Acton, 515 U.S. 646, 655 (1995), “we do not, of course, suggest that public schools as a general matter have such a degree of control over children as to give rise to a constitutional ‘duty to protect’” (citing DeShaney, 489 U.S. at 200).

This decision did not consider any rights parents might have under the Individuals with Disabilities Education Act [IDEA] or other state or federal regulation. Clearly, the court might have found that a policy and practice of allowing special education students to leave with impunity might effectively deny them a free appropriate public education [FAPE]. Beyond this, however, there is no Constitutional duty for schools to keep children in the classroom, nor is there any apparent duty to insure their safety or well-being (or even notice to the parents or police) once they leave school grounds.

The case is Saez v. City of Springfield.

Almost 5 years ago, the Marsh Law Firm was instrumental in enhancing the federal civil legal rights of children who are victims of child pornography. Borrowing from intellectual property law, our firm helped draft, introduce and pass—in just seven months—a comprehensive update to a long-forgotten federal law which gives victims the right to sue anyone who produces, distributes or possess their child sex abuse images. Masha’s Law provides statutory damages of $150,000 for each violation of federal child pornography provisions and was incorporated into the Adam Walsh Child Protection and Safety Act signed by President Bush on July 27, 2006.

In 2008, Florida passed a state version of Masha's Law. Now Kansas has joined the effort by passing a state law which is modeled on the federal law we helped write.

The bill provides a recovery for actual damages of at least $150,000. In order to bring a civil action against a producer, promoter, or intentional possessor of child pornography the plaintiff must prove that while he or she was under the age of 18, he or she was the victim of an offense that resulted in a conviction, that offense was used in the production of child pornography, and the victim suffered personal or psychological injury as a result.

Civil action may be pursued through private counsel or by the Attorney General at the victim’s request. The bill also creates a three year statute of limitations.

In October 2009, the U.S. Children’s Bureau named University of Michigan Law School the National Quality Improvement Center on the Representation of Children in the Child Welfare System (QIC-ChildRep).

The QIC-ChildRep, is a five-year, $5 million dollar project to gather, develop and communicate knowledge on child representation, promote consensus on the role of the child’s legal representative, and provide one of the first empirically-based analyses of how legal representation for the child might best be delivered.

The Center, which is run by the legendary child advocate Don Duquette, has a great website and promises to answer the following questions:

• What should be the duties and responsibilities of the child’s representative in civil child protection proceedings?
• Who should represent the child in such proceedings? A lawyer? A CASA? A social worker? A team?
• What does the child representative do that makes a difference in a child’s life?
• How can effective representation for the child be accomplished? That is, what organizational structure best delivers legal services for a child?
• By what criteria is effective child representation to be measured?
• How should the child's representative accommodate the child's wishes in setting the goals of the advocacy?

This is a serious initiative which is long overdue and which will significantly advance the representation of children in the child welfare system. I look forward to the results.

The ACLU filed a federal lawsuit today against Pennsylvania school district for searching a student's confiscated cell phone without probable cause and punishing her for storing semi-nude pictures of herself on the device. The school subsequently turned her phone over to George Skumanick Jr., at the time the Wyoming County district attorney, who threatened to file felony child pornography charges against the girl unless she took a class on sexual violence.

The Third Circuit recently threw out the prosecutor's case.

"Students do not lose their privacy rights at the schoolhouse door," said Witold Walczak, the ACLU of Pennsylvania's Legal Director and one the student's lawyers. "School administrators have no more right to look through personal photographs stored on a student's cell phone then they have the right to rummage through her purse, read her diary and mail, or view her family photo album."

In January 2009, a teacher confiscated the cell phone of N.N., a 17-year-old senior, for using a cell phone on school grounds in violation of school policy. Later that morning, Principal Gregory Ellsworth informed N.N. that he had found "explicit" photos stored on her cell phone, which he turned over to law enforcement. He then gave her a three day out-of-school suspension, which she served. According to the student handbook, the first offense for misuse of a cell phone is a ninety-minute Saturday detention and the confiscation of the phone for the rest of the day.

The photographs, which were not visible on the screen and required multiple steps to locate, were taken on the device's built-in camera and were never circulated to other students. N.N. appeared fully covered in most of the photographs, although several showed her naked breasts and one indistinct image showed her standing upright while fully naked. The photographs were intended to be seen only by N.N.'s long-time boyfriend and herself.

"I was absolutely horrified and humiliated to learn that school officials, men in DA's office and police had seen naked pictures of me," said N.N., who graduated in 2009. "Those pictures were extremely private and not meant for anyone else's eyes. What they did is the equivalent of spying on me through my bedroom window."

A few days later, N.N. and her mother received a letter from then-District Attorney George Skumanick threatening felony child pornography charges if she did not complete a five-week re-education course on violence and victimization offered by the DA's office and the Victim's Resource Center. According to the suit, N.N. reluctantly agreed to take the course rather than face prosecution.

"Ironically N.N. was forced to take a class about victimization by the very people who were victimizing her," said Jacob C. Cohn of Cozen O'Connor, one of N.N.'s lawyers.

The lawsuit, filed in the U.S. District Court for the Middle District of Pennsylvania, charges that the search of the cell phone and the punishment for the content of the photographs violated N.N.'s rights under the First and Fourth Amendments to the U.S. Constitution and the Pennsylvania constitution. It seeks to have all electronic and hard copies of the photographs destroyed.

A report issued yesterday by attorneys hired by the Lower Merion School District found that the collection of images stemmed not from an effort to spy on students but from "the district's failure to implement policies, procedures and recordkeeping requirements and the overzealous and questionable use of technology by IS personnel without any apparent regard for privacy considerations or sufficient consultation with administrators."

The report also criticized leaders and several members of the IS department as "not forthcoming with the Board, administrators and students about what TheftTrack could do and how they used it," citing incidents demonstrating "an unwillingness ... to let anyone outside of the IS Department know about TheftTrack's capabilities."

The report said the tracking system was intended to help recover stolen computers and the district used it successfully for that purpose. But it said the district also used the system for missing computers and for unknown purposes and left it activated for long periods in cases "in which there was no longer any possible legitimate reason" for capturing images.

The report faults administrators who had information about the program with not having appreciated the privacy concerns raised.

The most interesting part of the report confirms the allegation by student Blake Robbins and his family about alleged privacy violations over webcam images taken at home without their knowledge.

The report says Robbins turned in his laptop with a broken screen and was issued a loaner on Oct. 20, but school officials quickly moved to retrieve it due to outstanding insurance fees. So the tracking program was activated from Oct. 20 to Nov. 4 and captured 210 webcam photographs and 218 screen shots, the report said.

Although a technician confirmed on the first day of tracking that the laptop was "now currently online at home," another official in the same department instructed him to keep the tracking on and later told investigators he thought he needed authorization to terminate it, the report said.

On Oct. 30, the report said, a technician saw a computer screen shot that "included an online chat that concerned him." After consulting with a superior, he allowed school officials to look at the images.

Although the school principal said none of the images should be discussed with Robbins or his parents because they involved off-campus activities, Vice Principal Lindy Matsko decided about a week later it was "appropriate to discuss certain seemingly troubling images" with them, the report said.

In the civil lawsuit, Robbins said Matsko approached him and warned that school officials, based on webcam photos, suspected him of selling drugs. Robbins, 15, denies the drug allegation and said Matsko mistook Mike & Ike candies for illicit pills.

Robbins family attorney Mark Haltzman told reporters at the meeting that he and his clients were "thankful that we've been vindicated ... about all the misuse going on," but he added he was concerned that the full story had not yet been revealed.

The report notes Robbins "was not disciplined as a result of any images captured from his laptop."

Finally the truth about Lower Merion's use of remote monitoring software on student laptops: On Monday, the District's lawyer admitted that the school system captured 56,000 images of students, although thankfully "none of the images appeared to be salacious or inappropriate."

Back in February, the District's website declared that they only activated the software to locate lost, stolen or missing laptops: "The district has not used the tracking feature or webcam for any other purpose or in any other manner whatsoever," the Web site said.

Conclusion: there must be an awfully lot of missing laptops in the richest school district in Pennsylvania and one of the richest school districts in the country. Actually, maybe that's how everyone is getting so rich. They're fencing school laptops! This gives the story a whole new angle.

Let's see, there are 1500 students at Lower Marion High School, divided by 56,000 "investigatory images," means that each student stole about 37 computers. With MacBook Pros running about $1100 each, I'd say that each student in the LMSD received over $40,000 by fencing school computers. Parents with multiple students in high school could be making well into six figures with this scheme, easily offsetting school taxes, payments on luxury autos and mortgages.

And remember those parents who signed a petition demanding that all lawsuits against the school district be dropped? They definitely know they've got a good thing going. Why mess it up with a lawsuit which might lead to this scam leaking out?

Let the school peek at whatever they want to. As long as we can keep moving these "lost, stolen or missing" laptops on eBay, the District will be fully justified in capturing tens of thousands of images, the parents will get rich, and all the students at LMSD will keep their fancy cars, homes and vacations.

It's a win-win situation for everyone! Why give it away for free by sexting? Make the District work to "recover their lost, stolen or missing" laptops.

(These are high rez images too! Check out this image of Harriton High student Blake Robbins which his parents say was made surreptitiously by a school-issued laptop. No chance that the District will miss one mole on the crooks' nose with pix like these!)

Any kid that has a problem with this set up will get sent to Luzerne County where corrupt judges got cash bribes for sending juvenile delinquents to a private detention facility. From Masha Allen's adoption by a pedophile, to Luzerne County's cash for kids, to LMSD's pedo laptop recovery program - there's just something about Pennsylvania folks. My advice, keep your webcam's covered and your doors locked.

For more on this story, check out the Philadelphia Inquirer

The New York Times editorialized today about sexting:

Schools across the country are understandably concerned about students “sexting” — sending sexually suggestive photos and text messages by cellphone. But a Pennsylvania school district went too far when it referred several female students for criminal prosecution after their images showed up on other students’ phones and they refused to participate in an antisexting education program. A federal appeals court was right to rule last week that parents had the right to block the district attorney from prosecuting the girls.

In the fall of 2008, officials in the Tunkhannock Area School District discovered nude and seminude pictures of female students on cellphones belonging to other students. After they found out that male students had been exchanging these images, the officials turned the phones over to the district attorney to investigate.

The district attorney wrote to parents of at least 16 students, who either owned the confiscated phones or appeared in the photos, threatening to prosecute the students on child pornography charges. If the students enrolled in an education program covering sexual harassment, sexual violence and related issues, he said, they would not be charged.

The parents of three girls refused to enroll their daughters. The parents of one girl, who was photographed speaking on a phone in a white bra, said she was simply being a “goof ball.” Another girl was seen in a towel, looking like she had gotten out of the shower.

These parents sought a temporary restraining order to block the district attorney from bringing criminal charges against their daughters, which the court granted. The cases against two students were dropped and the United States Court of Appeals for the Third Circuit, in Philadelphia, has since upheld the lower court. It said the third student and her parents are likely to succeed with their constitutional claims.

The prosecutor’s threat to bring charges, the appeals court ruled, would be retaliation for the exercise of protected constitutional rights — the parents’ 14th Amendment right to parental autonomy, and the child’s First Amendment right against compelled speech. Students in the program are required to write about how their actions were wrong.

The court said the prosecutor was trying to retaliate, rather than simply enforce the law, because there was so little basis for believing the three students had engaged in illegal activity — that they ever possessed the images or were involved in transmitting them.

Schools have a strong interest in maintaining an appropriate learning environment, indeed a duty to do so. But as students use more — and more elaborate — forms of technology, school officials will need to do a better job of upholding decorum without creating felony prosecutions out of misbehavior that should be handled by parents.

Appellate decisions regarding foster care are rare and decisions that focus on foster children are rarer still. So when two decisions appear in the space of about a week they deserve some commentary. One is from the Maryland Court of Appeals, Maryland's highest court, and addresses an issue of great interest: under what circumstances and to what extent does a foster child's attachment to foster parents impact the rights of the biological parents when such parents are confronting the termination of their parental rights? The other case, from the New York Appellate Division, also addresses an issue of interest: can foster children sue foster parents for negligent supervision?

A lesson that can be learned from both cases is that the laws that affect foster care in general and foster children in particular are far from uniform. Each case provides insight into these important issues and suggests how the law may evolve.

This just in from Philly.com:

A group of Lower Merion and Harriton High School parents met to discuss ways to derail the possibility that a federal lawsuit over laptop spying could lead to a lengthy and expensive class-action case against their district.

Bryn Mawr resident Michael Boni, one of the organizers, said yesterday: "We have spoken to our neighbors and friends, and it seemed that there was a groundswell of opposition to one family with one lawyer bringing this action on behalf of the community."

He said the parents were "not suggesting there weren't problems" with how the district has handled the laptop issue. "But we don't think [a class-action lawsuit] is the answer."

The group, which calls itself lmsdparents.org, is limited to parents of students at the two high schools. Between 300 and 400 parents had signed on by yesterday afternoon, said Bob Wegbreit, another founder.

A related group calling itself Parents in Support of the Lower Merion School District, which said it shared the same objectives, had garnered more than 700 signatures on an online petition by yesterday evening.

Andy Derrow, a Harriton junior's father who has joined the new group, said yesterday: "There are a lot of us who are incredibly skeptical of the motives of the Robbins family." He said the district was a "pioneer" in buying laptops for students to use at home as well as in school.

"It is so easy to second-guess the decision [to use the laptop theft-tracking device], but there was no handbook out there for how to do it," he said. "We are all waiting for all the facts to be known, but so far, our attitude is that we want to help the school district fix whatever needs to be fixed and to move on."

Read the entire story here.

FindLaw columnist and Cornell law professor Sherry Colb takes on a question involving my client that has sharply divided courts: Should a person who is found to have committed the crime of possessing child pornography be required to pay restitution to each child who appears in those images? The question has been posed very sharply recently, because images of one child victim -- whose pseudonym is "Amy" -- have been at issue in 350 criminal cases across the country. Moreover, the difference in the amount of restitution awarded in those cases is dramatic: Two Florida judges together awarded over three million dollars; a California judge awarded only $5000; and a Texas judge refused any award at all.

Read Professor Colb's entire article here.

The Lower Merion School District recently admitted to activating the webcams on 42 "missing" school-owned laptops without the knowledge or permission of students and their families. Surprisingly, the software that performs this function is not only widely available, it's free and downloadable by anyone.

One such program is called Prey. It's open source and was recently discussed in this TechRepublic video.

Prey is a lightweight program which runs in the background and is completely hidden to the end user. It's built in modules so an administrator can choose whether or not to install certain features like the ability to activate a laptop's webcam. Clearly, if they were using Prey (and it is by no means certain that they were), someone in the Lower Merion School District choose to enable this function. A laptop does not need to be "missing" in order to activate one or more of Prey's monitoring capabilities. An administrator, or anyone with access to the Prey internet control panel, can activate, for example, a laptop's webcam, anytime.

I am, perhaps, always the skeptic in these matters. But as anyone who has read this blog knows, this kind of activity is not surprising. Remember Brannum v. Overton County School Bd, covered here, where school administrators installed and operated video surveillance equipment in the boys' and girls' locker rooms? What about strip searching students over Advil in the Savana Redding case? Even the FBI was implicated when several employees were caught using security cameras to spy on underage girls in a dressing room during a prom dress charity event.

Sadly, it shouldn't be shocking to anyone that the Lower Merion School District administration is finally joining the cyber sexting party. Even sadder is the fact that some students knew something was amiss with their webcams but either didn't care or just chose to cover the webcam with a post-it.

Now where did I put my laptop? Hey, who deleted my copy of Brave New World. And why is my webcam blinking . . . . Thank goodness it's only the school nurse making sure I'm not chewing on an illicit Advil. Ms. Miller, if you're out there, it's only a cinnamon flavored tic tac. Really. It is.