by Eileen | 7:03 pm, January 18, 2013 | Comments Off
I wrote recently about Andrea Hernandez and her attempt to strike down RFID tracking of public school students on religious freedom grounds. She lost her initial case and the 5th Circuit declined to give her a preliminary injunction, upholding the original judge’s deadline of January 18th for Miss Hernandez to either wear the ID tag or leave John Jay Charter School.
Which she is just what she will be doing.
The larger question now, what happens from here? I don’t foresee a privacy victory on this one. Here’s why:
1. Miss Hernandez made her case on grounds on religious freedom, not privacy, even going so far as to explicitly state she was not seeking relief for privacy violation. Without hearing directly from her, we can’t even know if she sees being asked to wear an RFID chip as a privacy violation. If there’s a First Amendment win here, it would be in ruling that minor students in public schools can practice their religion in school as a negative freedom – refusing to participate in activities and programs that violate their religion tenets. Or, it might be a ruling that free speech includes refusing to wear a symbol of a program the wearer finds objectionable. The latter of course runs into questions of the state’s compelling interests. But any decision on whether or not forced submission to real time remote monitoring is a ‘search’ will not come for this case. Nor will the equally important question of calling any data gathered a ‘seizure’. I would say we can easily assign value to that data for legal purposes; the school trades it to the federal government in return for substantial funding. But none of this really works when the basic case was made over freedom of worship.
2. Any kind of precedent growing from this case could bring us into the legal swamp of sorting out when someone’s claim of religiosity is legitimate and when it is a way out of obeying a law. First, this puts the state in the place of judging religions and individuals’ religiosity – problematic on so many levels. Secondly, this removes the debate from the realm of objective rules about what is and is not reasonable when it comes to asking citizens to endure discomfort, humiliation, and loss of liberty for the state’s benefit, dumping us squarely into a nightmarish proposition of poking holes in laws to please the loudest complainers. In other words, clientism. And that is a dangerous distraction from rationally assessing if a law is just a bad idea and should be got rid of in its entirety. I admit I worry when the state gives a little on a bad law, precisely because that’s often a cynical move on the government’s part to deflate the public will to fight the law itself. But I am also mindful of the need to know when the deal you’re offered is the best you’re likely to get. On top of that, smart activists need to be conscious that refusing to accept anything less than a total victory can make you look rigid, dogmatic, and unrealistic. Our liberties are chipped away far more than chopped; we should be prepared to fight for inches in order to take a mile.
3. Andrea Hernandez was offered a compromise, wherein she would have been exempted from having an active chip in her ID badge, so long as she wore the badge. Instead, she claimed that even wearing the badge, without any chip in it, would make it look like she supported the program. As I see it, that she had previously worn the badge, only filing a complaint when the school announced it would add RFID chips, and that she actually expanded her complaint after the court offered to exempt her from the chip, both weaken her argument. Winning cases is about finding attractive plaintiffs. There’s a reason the government always uses pedophiles and large-scale con-artists when they try to weaken computer privacy, just as there’s a reason civil libertarians go looking for unimpeachable and deeply sympathetic yeomen. I worry that Miss Hernandez, were her case to explode, would be too easily painted as a fundamentalist nut who won’t take a good deal. And I don’t doubt for one second that the state would go there, albeit through sympathetic press and seemingly independent voices.
4. Were her legal team to try to make this into a privacy case, the state would simply argue that they have a compelling interest in student security, one that supersedes Miss Hernandez’s interests and rights. On this point, I think the state has a handicap; by offering to let Miss Hernandez wear an ID badge without the RFID chip, the courts tacitly admitted that the tracking isn’t truly vital to protecting students. Prior to that, the school district was already quite open that the entire program was primarily about generating concrete attendance figures in order to secure more federal funding. That would open the door for Miss Hernandez to argue that her rights are being impinged not to protect her but to garner the school district more money with the minimum amount of work. In policy terms, the negative externality – you’ve got to give up something if you want funding – is being offloaded onto her and all her fellow students.
The good news is that some promising avenues have been left unexplored. The RFID chips are unencrypted and coded with each student’s SSN. That leaves children far more vulnerable then they were without the chips and more-than erases any security gain the chips could offer. The chips merely tell you when a student, or a student’s chip, is on the campus; nothing in the program is aimed at guaranteeing students are in the classroom. Federal money flows when kids are simply ‘in attendance’, defined as being on the school grounds, so that’s all the school district is going for. The RFID program doesn’t actually do anything to get kids into their assigned seats on time. If the school does monitor chips in real time and track down students whose chip shows them being outside their classroom, that’s no improvement on teachers handing lists of absent students to hall monitors who can then track the brats down, but it does come with a hefty price tag and a loss of privacy.
We’re told the chips are somehow coded so as to be unreadable by any RFID scanner other than the one on school property. This is meant to alleviate concerns that anyone with a scanner, a cheap and readily available device, can follow kids around once they leave school. The technological merits of this are questionable, to say the least, but even if it’s a true statement, it’s also an admission that the school is doing nothing to deal with with students who are truant. I just can’t stress it enough; this is a program that generates a hard metric in order to satisfy funding requirements. It does absolutely nothing to protect students or ensure children actually spend the school day in class. It has no secondary aims, just bureaucrats making noise about how much they care about the kids. But what kind of educator wants to punish kids for refusing to help in the funding grab more than she wants to make sure those kids receive an education?
The question could ripen in the near future. One argument the state made is that Miss Hernandez is in a charter school that had adopted the RFID chips as a pilot program. Though it’s likely a fiction, the school district claimed they had not yet made a choice on expanding the program to all its schools. Thus, they told Miss Hernandez she could choose to leave the charter school and take a place at a school not using the chips. I other words, they argued they weren’t forcing her to do anything, though some would claim asking a student to accept surveillance or give up a spot at a highly-rated charter school is hardly a tribute to free will. Soon, though, I think we will see zero-exception tracking policies spread across every school in a given district, and that could leave the door wide open.
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