Can school or work look at your phone?

| 05/03/2019

What rights do I have at school or when older at work with regard to electronic devices including phones and computers, personally owned? Do teachers (or employers) have any right to search and under what circumstances and laws?

Ask Auntie, CNS Local Life, Caymanian status

Auntie’s answer: Unfortunately, this is a complicated issue, in part because it makes a difference whether the school is public or private. An official from the the Human Rights Commission was able to take me through it and, as the answer was not so straightforward, I am going to allow the expert to explain.

To start with, I was told, “This question appears to engage the right to private and family life (as opposed to the right to education).”

The official continued: “Under this right, the respect for your private and family life, your home; and your correspondence is protected. ‘Correspondence’ could include communication by letter, telephone, fax, and e-mail. The concept of ‘private life’ is broad. In general, it would mean you have the right to live your own life, with reasonable personal privacy in a democratic society, taking into account the rights and freedom of others.”

However, the official explained, it is important to remember that the Bill of Rights only applies “vertically” or between a citizen and the government, “therefore this answer does not speak to what would happen in a private school or privately owned company. When at a government-owned school or in a government place of employment, your personally owned electronic devices, including phones and computers, are your own. However, the right to private and family life is a qualified right.”

A qualified right is one that can lawfully be restricted or taken away by the government in certain broadly defined circumstances.

“Usually, the right is set out and followed by a list of criteria, which explain the general circumstances when it will be lawful for the state to interfere with or restrict the right, balancing those rights against the rights and interests of others,” the official said, adding if it can be shown to be “reasonably justifiable, the government could take this right away from you:

  • for the purpose of protecting the rights and freedoms of other people;
  • to conduct a lawful, courted-ordered search;
  • to regulate the right of persons to enter or remain in the Cayman Islands; or
  • in the interests of defence, public safety, public order, public morality, public health, town and country planning, development to promote the public benefit.”

Specific to your query about rights at school, the official said, “Ultimately, it is highly unlikely that teachers would have the ability to require access to personal electronic devices. Unless authorised by law (e.g. a police officer conducting an investigation) there are very few circumstances in which another person (including an employer) can require access to your personal electronic devices. If such access were requested without lawful authority then the owner of the device would be fully justified in refusing to grant it.”

Also of note is how this right is applied in public vs private schools. The main difference is that private school officials are not considered public officials. “If a situation occurred in which someone unlawfully searched a personal device in a private school setting it would be a civil, or possibly a criminal, matter but not a human rights matter” since human rights are only applied between an individual and the government.

One other point: I was unsuccessful, despite several attempts over months, in ascertaining the official government policy (if one exists) concerning the rights of teachers to confiscate a student’s phone and/or check their texts and calls, which could be important, for example, in cases of bullying. The Human Rights Commission came up empty as well with queries of the Ministry and Department of Education. I welcome any clarification from either.

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