THE FOURTH AMENDMENT AS IT RELATES TO ROOM SCANS FOR REMOTE EXAMINATIONS

Author: Kayla Porter, Associate Editor

            The Fourth Amendment to the Constitution protects a person against unreasonable searches and seizures of his person, his houses, his papers, and his possessions[i].   A Fourth Amendment search “occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.”[ii]   A question then is raised whether a student’s Fourth Amendment rights are violated when a proctor orders a scan of the room while the student is taking a remote exam.  According to the Northern District of Ohio in its recent Ogletree v. Cleveland State University ruling, a warrantless room scanm for remote examination does violate a students’ Fourth Amendment rights.

            As a result of the COVID-19 pandemic, most of the courses offered during the Spring 2021 semester at Cleveland State University (Defendant) were conducted remotely.[iii]  Ogletree (Plaintiff), a student at the university, enrolled in a General Chemistry II course. at the university.[iv]  Due to PlaintiffOgletree’s health issues, he was unable to pass the university’s required “Daily Health Assessment” necessary to attend in-person courses.[v]  Thus, PlaintiffOgletree also could not take any in-person examinations for the same reason.[vi]

When PlaintiffOgletree enrolled in the Chemistry II course, it was outlined in the syllabus for the course that the proctors and the professor reserve the right to order a room scan at any point during an examination.[vii]  PlaintiffOgletree disputed the policy and, three days later, the professor removed the policy from the syllabus.[viii]  PlaintiffOgletree was later scheduled to take a remote examination on February 17, 2021 at 12:30 pm.[ix]  Despite PlaintiffOgletree’s previous protest, roughly two hours before his exam, he received an email from Cleveland State Testing Services stating that the proctor would be “checking [his] ID, [his] surroundings and [his] materials”.[x]  Because Defendantthe University required students taking remote exams to be in a location where the student would be alone and uninterrupted, PlaintiffOgletree’s bedroom was the only suitable location in his home.[xi]  In his room, PlaintiffOgletree had confidential tax documents in his work area.[xii]  PlaintiffOgletree informed the testing services about the documents, as well as the fact that PlaintiffOgletree was unable to secure the documents before the start of the exam.[xiii]  Nevertheless, when the exam began and the proctor ordered a room scan, PlaintiffOgletree complied.[xiv]  The room scan, which lasted less than a minute, and the footage of PlaintiffOgletree taking the exam was recorded and later retained by  a third-party vendor.[xv]  Once retained by the third-party vendor, “access to the video is strictly controlled.”[xvi]

            PlaintiffOgletree alleged that, by conducting the room scan, Defendantthe University violated his Ogletree’s Fourth Amendment rights.  Ogletree argued the Fourth Amendment that protecteds him from unlawful searches “because students have a subjective expectation of privacy in their houses, and especially in their bedrooms, and society recognizes that expectation as reasonable.”[xvii]  DefendantThe University argued that the “subjective expectation of privacy was not objectively reasonable”, “room scans are ‘standard industry wide practice’”, and “students frequently acquiesce to their use.”[xviii]  Both PlaintiffOgletree and Defendantthe University moved for summary judgment.[xix]  The Northern District of Ohio granted PlaintiffOgletree’s motion.[xx]

            The cCourt first addressed Defendantthe University’s claim that students frequently consent to a room scan during remote examinations.  While PlaintiffOgletree may have been the only student on record to object to a room scan, it nevertheless remaineds true that the home is one of the “core places” that society “recognizes reasonable and legitimate privacy interests.”[xxi]  Thus, even though Defendantthe University and other schools have conducted room scans with minimal, if any, objection, it cannot be concluded such scans “[do] not violate a privacy interest that society recognizes as reasonable.”[xxii]

            The Court court then addressed PlaintiffOgletree’s expectation of privacy.  DefendantThe University argued that the expectation was unreasonable, citing the Supreme Court’s holding in California v. Ciraolo.[xxiii]  In Ciraolo, the Court held “that it was unreasonable to expect that marijuana plants were constitutionally protected from being observed from an altitude of 1,000 feet ‘in an age where private and commercial flight in the public airways is routine.’”[xxiv]  Because the marijuana plants were openly observable, government officials who were in public place lawfully were not conducting an unlawful search “by observing things in plain view.”[xxv]  The University argued that, sinceWith the camera on PlaintiffOgletree’s computer was turned on while he took the exam, PlaintiffOgletree’s bedroom was in plain view, so Defendantthe University could not have violated his Fourth Amendment rights.  However, the court distinguished this case with Ciraolo by finding that a room scan is not like seeing an openly observable marijuana plant that is openly observable.  By conducting a room scan, the proctor went “where people otherwise would not, at least without a warrant or an invitation.”[xxvi]  Because no one could view PlaintiffOgletree’s bedroom without a warrant or invitation, his bedroom could not be considered to be in plain view or to be openly observable.  Therefore, the proctor violated PlaintiffOgletree’s reasonable expectation of privacy in his bedroom.

            Next, the cCourt addressed Defendantthe University’s argument that the room scan cannot could not be considered a “search” within the meaning of the Constitution because the technology used in the scan was “in general public use.”[xxvii]  The Supreme Court held in Kyllo that thermal imaging technology used by law enforcement from the outside of the home, to formulate conclusions about the interior of the home did not constitute a Fourth Amendment search because the technology was not “in general public use.”.[xxviii]  Yet, the court notes that the Supreme Court did not hold that technology that was “in general public use” did not constitute a search under the Fourth Amendment.[xxix]  In fact, the court distinguishes Kyllo from Katz, because the Court in Katz held that the “procedural of antecedent justification…that is central to the Fourth Amendment” cannot be ignored even where new electronic surveillance equipment allow places and information to be accessible without intrusion.[xxx]  Thus, even though cameras are now commonly used by the public, the public cannot use cameras to see places that are not publicly visible unless the owner’s consent is granted. 

            Though the cCourt rejected Defendantthe University’s argument under Kyllo, Defendantthe University further contended under Wyman that a room scan cannot be considered a search because the scan is “limited in scope, conducted for a regulatory or administrative purpose, and not coerced.”[xxxi]  In Wyman, the Supreme Court held that a home visit by a caseworker for a welfare beneficiary did not constitute a search under the Fourth Amendment because “the visit was not forced or compelled, the beneficiary’s denial of permission was not a criminal act, and if the beneficiary did not consent then the visitation did not occur and the aid merely ceased.”[xxxii]  Thus, the room scan could notannot be a search because the room scan, because it was conducted only to protect exam integrity.[xxxiii]  , tThe scan was not not coerced.,  the The scan was brief.  , and tThe student had control insofar as choosing the location in which he would take the exam, as well as what items would be in plain view during the scan.[xxxiv]  Yet,However, Ogletree argues that the Fourth Amendment protects against all intrusions into a private home, regardless of how limited the intrusion may be.[xxxv]  Therefore,The court agreed with Ogletree’s argument and rejected with the University’s Wyman argument.  The court stated that Wyman “appl[ied] to a fairly distinct set of circumstances materially different than those at issue here: making welfare benefits contingent, for all recipients, on a limited and consensual search to confirm expenditure of the funds for the interest of  a child” while this case “involves the privilege of college admission and attendance and does not involve a benefit made available to all citizens as of right.”[xxxvi]   

            Finally, the cCourt addressed the reasonableness of the room scan itself.  In order for the Fourth Amendment to apply, the search must be unreasonable.  A search is reasonable when it is performed to due reasonable suspicion.[xxxvii]  If no reasonable suspicion exists, the search could still be considered reasonable if a “special needs exception” applies.[xxxviii]  A special needs exception is applied where the circumstances of the search creates a government need that goes “beyond the normal need for law enforcement.”[xxxix]  When a room scan for remote examinations is conducted, the search is not performed due to reasonable suspicion.[xl]  Thus, the court must determine whether a special needs exception applies in this case.  The court considered the following facts to determine whether an exception applied: In determining whether the exception applies, courts consider the following: “(1) the nature of the privacy interest affected; (2) the character of the intrusion; (3) the nature and immediacy of the government concern; and (4) the efficacy of this means of addressing the concern.”[xli]

            First, the cCourt looked at the nature of the privacy affected.  A private home is well-established as being protected by the Fourth Amendment.[xlii]  The court held that, eEven when the intrusion is not physical, a person’s right to privacy is nevertheless protected from a “virtual intrusion conducted through remote technology.”[xliii]  When the room scan was conducted, it was in PlaintiffOgletree’s home, specifically his bedroom.  Ogletree’s Thus,  Plaintiff’s expectation of privacy falls within the rights protected by the Fourth Amendment.  This factor weighs in Ogletree’s favor.

            Second, the cCourt examined the character of the intrusion.  While PlaintiffOgletree did trade away some of his privacy by enrolling at the university, he nevertheless retained his constitutional rights.[xliv]  Ordinarily, the University, like other universties, would offer both in-person and virtual courses for students to take.  The court states that, in normal times, students would have more of a choice as to the type of course they enroll in based on whether they prefer the privacy of an in-person course or the convenience of a virtual course.[xlv]  However, due to the pandemic, these choices are much more limited.  The court notes that, due to PlaintiffOgletree’s inability to pass the required Daily Health Assessments to attend in-person, PlaintiffOgletree’s only option was to enroll in virtual courses.[xlvi]  Further, after disputing a policy requiring room scans for remote examinations in the course’s syllabus, “PlaintiffOgletree reasonably believed he would not be subject to a room scan until approximately two hours before the time of his test.”[xlvii]  As such, the character of the intrusion weighs in PlaintiffOgletree’s favor based on the Constitutional protection afforded to the home, PlaintiffOgletree’s lack of options, and the relatively short notice that the scan would take place.[xlviii]

            Third, the cCourt weighed the nature and immediacy of the government concern.  PlaintiffOgletree conceded that Defendantthe University had a “legitimate purpose in preserving the integrity of its tests.”[xlix]  As a university, Defendantthe University must take steps that ensure examinations are conducted in a way that preserves academic fairness and integrity.[l]  Room scans are a necessary means of preserving academic fairness and integrity, as it aids in the detection of unauthorized assistance.  Thus, this factor weigheds in the Defendantthe University’s favor.

            Fourth, the cCourt examined the efficacy of the means of addressing the concern.  While Defendantthe University was eis entitled to establishing enacting practices that preserve academic fairness and integrity, there Ogletree pointed toare various other safeguards at Defendantthe University’s disposal to achieve those goals without intruding upon a student’s privacy in his home.[li]  Thoseese safeguards include practices such as “employing proctors to monitor for suspicious movement or using proctoring programs that perform functions like preventing students from accessing the internet or other programs during the test, recording students during tests, and using artificial intelligence to detect suspicious movement or plagiarism.”[lii]  Of these practices, a room scan is the least effective in achieving Defendantthe University’s goals of preserving fairness and integrity.  Ogletree noted The that the use of a room scan is left at the discretion of individual professors which suggested that the University acknowledged a roman scan is only one option of many.[liii]  As a result, students may still violate academic integrity in courses where a room scan is not required.  Further, even Ogletree contended that when where a professor does did require a room scan, it is was not an effective means in ensuring academic integrity.[liv]  Once an examination begins,A a student is not required to remain in view of the camera until the exam is completed and submittedfor the duration of the examination.[lv]  Ogletree argued that tThe student may thencould confer notes in another room or use their cell phone to search for answers without being caught.[lvi]  Thus, Ogletree asserts that the room scan is not an effective means in preserving academic integrity, especially in comparison to the other safeguards available.[lvii]  The court concluded that thishis factor, too, weigheds in favor of PlaintiffOgletree.[lviii]  Therefore, all factors taken into consideration, the Court court determined that the usage of a room scan during remote examinations is unreasonable under the Fourth Amendment.[lix]

            Therefore, Defendantthe University violated PlaintiffOgletree’s Fourth Amendment rights by ordering a scan of his room during a remote examination.  Going forward, it will be interesting to see if more people begin filing claims that their universities violated their Constitutional rights by ordering a room scan during a remote examination. 

The COVID-19 pandemic changed the way educational institutions approached learning.  Due to the circumstances, countless universities across the nation utilized remote examinations where room scans were required.  While many universities have returned begun to return tto traditional education practices, this ruling may still affect the way remote examinations are proctored given the wide discretion professors are typically granted when determining the method in which examinations are offeredoffering examinations.  In light of this ruling, it may then be in the best interests of the universities to phase out room scans in order to reduce their risk of future litigation.

[i] U.S. Const. amend. IV.

[ii] Kyllo v. United States, 533 U.S. 27, 33 , 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001) (citing Katz v. United States, 389 U.S. 347, 361 (1967)).

[iii] Ogletree v. Cleveland State Univ., No. 1:21-cv-00500, 2022 U.S. Dist. LEXIS 150513, at *6 (N.D. Ohio Aug. 22, 2022).

[iv] Id. at *6.

[v] Id. at *6-7.

[vi] Id. at *7.

[vii] Id. at *7.

[viii] Id. at *7.

[ix] Ogletree, 2022 U.S. Dist. LEXIS 150513, at **8.

[x] Id. at *8.

[xi] Id. at *8.

[xii] Id. at *8.

[xiii] Id. at *8.

[xiv] Id. at *8.

[xv] Ogletree, 2022 U.S. Dist. LEXIS 150513, at **8-9.

[xvi] Id. at *9.

[xvii] Id. at *9-11.

[xviii] Id. at *11.

[xix] Id. at *9.

[xx] Id. at *29.

[xxi] Ogletree, 2022 U.S. Dist. LEXIS 150513, at **10-11.

[xxii] Id. at *11.

[xxiii] Id. at 12.

[xxiv] Id. at *12 (citing California v. Ciraolo, 476 U.S. 207, 215 (1986)). Id. at 12 (citing California v. Ciraolo, 476 U.S. 207, 215 (1986)).

[xxv] Id. at *12.

[xxvi] Id. at *12.

[xxvii] Ogletree, 2022 U.S. Dist. LEXIS 150513, at **13.

[xxviii] Id. at *13 (citing Kyllo v. United States, 533 U.S. 27, 34-40 (2001)).

[xxix] Id. at 13.

[xxx] Id. at 13 (citing Katz v. United States, 389 U.S. 347, 359 (1966)).

[xxxi] Id. at 15. Ogletree, 2022 U.S. Dist. LEXIS 150513, at *15.

[xxxii] Id. at *15-16 (citing Wyman v. James, 400 U.S. 309 (1971)).

[xxxiii] Ogletree, 2022 U.S. Dist. LEXIS 150513, at *16-17.

[xxxiv] Id. at *16-17.

[xxxv] Id. at *19.

[xxxvi] Id. at 19.

[xxxvii] Id. at 22 (citing New Jersey. v. T.L.O., 469 U.S. 325, 345-347 (1985)).

[xxxviii] Id. at *22 (citing Griffin v. Wisconsin, 483 U.S. 868, 873 , 107 S. Ct. 3164, 97 L. Ed. 2d 709 (1987) (quoting New Jersey v. T.L.O., 469 U.S. 325, 351 (1985))).

[xxxix] Ogletree, 2022 U.S. Dist. LEXIS 150513, at **22 (citing Griffin v. Wisconsin, 483 U.S. 868, 873 , 107 S. Ct. 3164, 97 L. Ed. 2d 709 (1987) (quoting New Jersey v. T.L.O., 469 U.S. 325, 351 (1985))).

[xl] Id. at *22.

[xli] Id. at *23 (citing Veronica Sch. Dist. 47J v. Acton, 515 U.S. 646, 654-64 (1995)).

[xlii] Id. at *23.

[xliii] Id. at *23.

[xliv] Id. at *25.

[xlv] Ogletree, 2022 U.S. Dist. LEXIS 150513, at *25.

[xlvi] Id. at 25.

[xlvii] Id. at *25.

[xlviii] Id. at *26.

[xlix] Id. at *27.

[l] Id. at *26.

[li] Ogletree, 2022 U.S. Dist. LEXIS 150513, at **27.

[lii] Id. at *27.

[liii] Id. at *28.

[liv] Id. at 28.

[lv] Id. at 28.

[lvi] Id. at 28.

[lvii] Ogletree, 2022 U.S. Dist. LEXIS 150513, at *27-28.

[lviii] Id. at 29.

[lix] Id. at *29.