School Lawyer Mom’s take on Netflix’s “Unknown Number”
Whew! First of all, I won’t spoil anything.
I have watched this Netflix documentary twice. My daughter wanted to watch it. It was clear from the trailer that there were curse words and sexually charged insults as well as an overarching theme of cyberbullying. It felt imperative to see for myself what was happening before exposing her young eyes to it. My daughter and I have had many discussions about cell phones, texting, and social media, so after I vetted it, I decided we’d make this a full learning and discussion opportunity. I want to share with you how Netflix’s “Unknown Number” highlighted the differences in investigations by schools and law enforcement.
We set up the iPad and watched, paused, discussed, watched, and rewatched certain parts. One parent complaint stuck out in my mind and has ever since: The mom said to the documentarian that THE SCHOOL DIDN’T DO ENOUGH. I was floored. And when I saw and heard that for the second time, I became a bit obsessed with this statement. It just seemed so wrong! So, let me share from my perspective what happens in a quasi-school, quasi-law enforcement investigation from a school lawyer mom’s perspective.
Two Different Trains
I’m not a train nerd or anything, although one of my favorite law professors was. Let me get back on track… This is how I explain this dual investigation situation. You have a school train and a separate law enforcement train – two different trains. Each train is on their own respective track. Each train is ran by a different entity. Each train follows its own path and at its own pace and with their own instructions. They may or may not talk with each other as they chug along. They likely won’t connect at the same place nor at the same time. Really, all the two trains have in common is that both originated at the same location. I’ll explain each now.
But first, what initiated the Unknown Number documentary on Netflix to begin with…
Unknown Number background
Two students began receiving vulgar, derogatory text messages from an unknown number – and it just kept getting worse. These messages were T-E-R-R-I-B-L-E. It met the definition for cyberbullying which is generally a repeated, targeted harassment using digital technology to threaten, embarrass, or target another person. The students’ friends and family became concerned. The school was contacted. Law enforcement became involved. Everyone was trying to figure out who was sending these messages, but the trickiest part was that the sender had figured out how to keep changing the phone number used to send the messages.
The School’s Role in an Investigation
As soon as school administration became aware, the principal began an investigation. It was determined who was known to be involved. The two people receiving messages were high school students – a couple who had been together for quite some time. The students were interviewed. The content of the messages was reviewed. The students’ parents were interviewed. Patterns were identified. And yet the messages were continuing over the course of months. And they just kept getting worse in content. And nobody knew who was sending the messages.
At this point, let me share about the role of the school in this kind of an investigation. Schools are guided by law and school board policy. In this situation, the students were willing to unlock their cell phones and let the principal view the messages. That is not always the situation. When a student does not freely allow a search, the school must rely on Fourth Amendment school search cases, such as the landmark Supreme Court case New Jersey v. T.L.O (1985), and state law.
As a quick overview of the law on searches, school officials only need “reasonable suspicion” to conduct a search. This is a low standard; it’s basically that there is a reasonable belief that the student has contraband or some item that violates law or policy on their person. This has been expanded over the years in application to include searches of cell phones. School officials do not need a search warrant. The search must be “reasonably related in scope to the circumstances which justified” the search. That means that the search is shallow and can only go so far as to look at the specific messages from the unknown number. The school cannot search the entire contents of the phone.
The school administrators pulled video surveillance from the hallways to see if a student could be identified with their cell phone in hand at the same time as the messages were time-stamped. No such luck. The school administrators called in several students for statements and to answer questions about what was known about the messages or even the context surrounding the messages.
Students can be interviewed at school without parents being present and without prior parental permission. Schools are also not required to give Miranda rights like law enforcement is. Schools have an important governmental interest in maintaining order in the learning environment. This allows for a search more easily but a lot less thorough than law enforcement.
At one point, the parents of one of the students who received the messages asked to come to a school sports team practice to do their own investigating. That was immediately denied. And that is the appropriate response a school administrator will have to such a request. What is necessary behind the scenes is to protect the confidentiality and privacy of students, which is granted under the Family Educational Rights and Privacy Act (FERPA). Should the parents investigate on their own under the guise of approval by the school, then any subsequent disciplinary action against the students would violate FERPA rights.
Most importantly, the authority a school has in an investigation is to determine if a school rule or policy has been violated. More particularly, the standard is usually a student code of conduct. I am going under the assumption that the school believed it was another student who was sending these messages. Here, the school was following its procedures to handle bullying and cyberbullying. The school is not looking for a violation of law as that is not within the school’s jurisdiction. Once it appears a law may have been broken, the school will notify law enforcement for them to do what they do.
The school did what it could and focused on checking in with the students at regular intervals to ensure there were no new developments. It became clear that the messages were coming from someone who knew about technology. And pretty quickly on, law enforcement became involved to initiate their own investigation.
Law Enforcement’s Role in an Investigation
To compare and contrast, the search standards under the Fourth Amendment are higher for law enforcement. Probable cause is required before a search can be conducted. Probable cause is a reasonable belief, based on facts and evidence, that a crime has been committed or that evidence of a crime can be found in a specific location. A search warrant is required and issued.
At the outset, there were no concerns by the students or the parents immediately involved for law enforcement to read the messages, ask questions, and conduct an investigation. If a student was to be questioned as a potential suspect, law enforcement would be required to provide Miranda rights and parental consent. A school does not do that and is not required to do that.
There was reluctance from some families who were accused to fully cooperate in the investigation at first. As a parent, it would be important to determine if you needed a lawyer’s advice before allowing your child to open up their phone. Ironically, one student’s parent was in law enforcement. I would assume he did his own search of her phone before just turning it over to be dumped.
Once that threshold is met for probable cause, the search is much more thorough. Law enforcement can go further than a school can as far as the depth of the search. Confidentiality laws don’t apply in the same way to a law enforcement investigation like they do in a school investigation. Instead of just searching the specific messages from the unknown sender, law enforcement can search the entire phone. At least one student’s phone was “dumped” of all of its contents for a full review. All pictures, messages, geolocations, etc. were combed through carefully.
Law enforcement has a wider network of support. Eventually, the FBI became involved and did conducted forensic investigating of the unknown numbers… until it was discovered one common connection. I won’t spill it here, but it took law enforcement’s outreach to the FBI to solve this case.
Another large deviation is that law enforcement is looking for a crime. Stalking, use of a computer to commit a crime, communicating with another to commit a crime, and obstruction of justice were what law enforcement suspected in this case. And I’ll spoil this – they found it! And the realization in that discovery was mind-blowing.
Together but Separate
There is no doubt that the school and law enforcement leaned on each other throughout the several months of their separate investigations. Yet, each plays a significantly different role and each can operate in different ways. It is not uncommon for a school investigation to be halted at the direction of law enforcement, especially as it relates to forensic interviewing of students.
Netflix’s “Unknown Number” highlighted the differences in investigations by schools and law enforcement. For the mom to say the school didn’t do enough is ludicrous in my opinion – but I’ve seen this documentary twice. I know what happens, and that comment shocked and disgusted me! Hopefully this helps a bit to see why a school can’t do what law enforcement can do and vice versa.
