Recently, Governor Brian Kemp of Georgia vetoed SB 15, the “Keeping Georgia’s Schools Safe Act,” legislation that would have required the reporting of ill-defined suspicious or criminal activity in schools to law enforcement agencies and conferred unconstitutional authority to state law enforcement agencies. In a letter to Gov. Kemp last month, the Center for Democracy & Technology urged the Governor to veto the bill because portions of the bill were unconstitutional, violative of the Electronic Communications Privacy Act, and had the potential to do more harm than good for students.
What did the bill do?
The bill addressed surveillance, data, and technology in the name of school safety in the following ways:
- The bill authorized law enforcement to compel communications service providers to disclose communications content without ever having to prove probable cause to a judge, and to gag the the provider indefinitely to prevent the giving of notice of this compelled disclosure of sensitive information.
- The bill required designated Georgia public school officials to report all “reasonable suspicion” of violent criminal activity in the school to law enforcement authorities, and encouraged them to report non-violent suspected criminal activity such as drug use as well.
- The bill also encouraged anyone in the school to anonymously report “suspicious, unsafe, or unlawful” activity through a mobile app maintained by the Georgia Information Sharing and Information Analysis Center, the state’s fusion center.
Why was it problematic?
- The bill would have authorized law enforcement to subpoena books, papers, documents, including those contained within or generated by computer or any other electronic device, without ever having to prove probable cause to a judge. This would have been unconstitutional as is evident from court decisions including United States v. Warshak (6th Cir. 2010). Additionally, to the extent this provision would have authorized the law enforcement to use a subpoena to compel a provider of electronic communications to disclose communications content 180 days old or less, it would have violated the federal Electronic Communications Privacy Act (ECPA). Furthermore, the bill authorized law enforcement to issue gag orders of indefinite duration on communications service providers to prevent them from notifying the subscriber or customer (in this case, the student, or the parent or guardian who opened the student’s account) of the subpoena. Because the gag order is indefinite and imposed without any judicial authorization, this provision would likely have been unconstitutional as well.
- The bill did not define what constitutes “suspicious, unsafe or unlawful” activity that could be reported, and provided no description of activity that creates “reasonable suspicion” that school officials must report to law enforcement. Studies have shown disparities in the way school disciplinary measures are implemented and the disproportionately negative impact these measures have on students on color. With no clear guardrails around what constitutes a reasonable suspicion, the bill had the potential to drastically increase the interactions of marginalized students with law enforcement and exacerbate the school-to-prison pipeline issue. Vague behavioral reporting requirements also increase the risk that students with disabilities will be unfairly targeted as “suspicious” because of a perception that school shooters who perpetrate violent acts that result in mass casualty suffer from severe mental illness, despite evidence to the contrary. Parents aware of the breadth of these behavioral reporting requirements may be dissuaded from seeking special education or mental health services that their children need.
- The bill mandated that the Georgia Information Sharing and Analysis Center – the state’s fusion center – maintain a smartphone application through which students and other school personnel can anonymously report suspicious activity. That information could then be shared with Homeland Security and other local law enforcement agencies. Anonymous suspicious activity reporting has historically resulted in reporting that penalizes expressive activity, reflects racial insensitivities, and risks chilling free speech, associations, and movements. Furthermore, the bill made no provisions for a person whose activity was reported to respond to it, and no mention of how long law enforcement agencies could hold onto this sensitive data.
The vetoing of the SB 15 bill gives the legislature a chance to reconsider how using data and technology to implement overbroad surveillance measures in schools could undermine the goal of keeping all students safe. CDT has highlighted what is missing from the school safety conversation, so it is our hope that the legislators will take this chance to work with diverse stakeholders, including parents from all communities, to focus on proven school safety strategies that consider the interests of all students.