When Desperate Times Should NOT Call for Desperate Measures: Fourth Amendment Protections Against (Unreasonable) Digital Surveillance that Became Standard Practice During the Pandemic

October 13, 2022

To search or not to search, that’s the dilemma. The pandemic brought along many drastic changes. Remote learning, work-from-home, online and curbside grocery shopping, among other things, were hailed as remedies to the COVID-era restrictions. While schools closed their doors in hopes of preventing the spread of the deadly virus, remote learning opened the door to a problem of a different kind, that is unwarranted searches that run afoul of the Fourth Amendment. 

Cleveland State University uses two proctoring tools for online exams, both of which require room scans of the student’s environment and surroundings to ensure integrity. One student, Aaron Ogletree, who was living with his family at the time, had to take the test in the only place where he could be “alone and uninterrupted”, his bedroom. Soon after he received notice that he had to perform a room scan, Ogletree was concerned about the piles of confidential documents and prescription bottles that were on his desk. Nonetheless, complying with the proctor’s request, he scanned his surroundings and took the exam. The exam ended but Ogletree’s inquiry into the legality of the room scan had just started. 

Alleging a violation of his Fourth Amendment rights, Ogletree sought injunctive relief from the court to prohibit the school from conducting room scans. The Fourth Amendment protects against unreasonable searches by government actors, which in this case is the state school. Recognizing that an unreasonable search “occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable”, the United States District Court for the Northern District of Ohio concluded that “virtual intrusion into [one’s] home” is unreasonable.” The court rejected the school’s contention that room scans are “standard industry wide practice” that students normally consent to and should therefore be considered reasonable searches. “Routine use of a practice” and the acquiescence to such practice does not rule out the possibility that such practice is, in fact, a violation of the Fourth Amendment. Room scans intrude into the privacy of homes, places that are not “openly observable” and not “in plain view”, and are therefore not routine searches that fall outside of the Fourth Amendment. Even when technological advancements provide access to places and spaces that are normally unobtainable absent a physical warrant, constitutional protections still apply. Cameras, for example, can be used to record people in their personal surroundings, but members of the public cannot use cameras to intrude into such private spaces. 

To search or not to search, that’s the dilemma.

The court, in Ogletree v. Cleveland State University, remarkably reasons that “[r]oom scans go where people otherwise would not, at least not without a warrant or an invitation”, which invites us to think about the wider policy implications of this rationale. Similar to how schools and institutes have a concern for preserving integrity, employers have a compelling interest in meeting work goals. As we’ve learned, however, the use of room scans of one’s private space is ill-advised. What about productivity-monitoring software that recently penetrated government agencies? These software, that monitor employees who work from home, provide the employer with access to the employee’s web usage and the ability to track keyboard strokes and mouse movements to monitor productivity. Although City of Ontario v. Quon permits government employers to search their employees’ electronic records, it limits the employer to reasonable searches or searches “motivated by . . . legitimate work-related purpose[s] and [are] not excessive in scope.”

This begs the question: is the use of productivity-monitoring software by government employers a reasonable search as defined in Quon or is it an unjustified intrusion of privacy? Meeting work goals is surely and definitely a legitimate work-related purpose, but that’s not what’s at play here.  Keyboard strokes, mouse movements, and web use are motivated by the employer’s desire to track its employees, but it could not be said that these measures are implemented to ensure productivity. Besides, tracking every click, move, and stroke is “excessive in scope”. Not only does it give the employer access to activity that it would otherwise not have without the employee offering it to them, but (1) the employees have a broad “privacy expectation”when it comes to electronic use and (2) the tracking is unrestrained and unlimited. The use of these software is likely an unreasonable privacy violation. 

Ogltree could be an indication that privacy-encroaching policies, that became increasingly-popular during the pandemic, are illegitimate. Tracking software, like room scans, are unreasonable searches that grant government employees access to private spaces. Other practices by government actors, such as random drug testing and hidden cameras, should be on our radar, as well. 

Hayfa Ayoubi

Hayfa graduated from Penn State with a dual degree in Psychology and Law & Society. In law school, Hayfa has been a member of the Carolina Health Law Organization. During her 1L year, she competed in the Kilpatrick Mock Trial Tournament and her team earned the semifinalist position.

Link to a piece that she worked over the summer: https://blog.petrieflom.law.harvard.edu/2022/08/16/how-the-dobbs-ruling-will-affect-people-with-substance-use-disorder/