By Marcello Iaia
HILLTOWNS — Photos of a male student’s nude ex-girlfriend were discovered by the school principal on his cell phone after it was confiscated at Berne-Knox-Westerlo on Tuesday, Jan. 22. Both are 14 years old.
An investigation is still ongoing, but criminal charges are not likely, according to Inspector Mark DeFrancesco of the Albany County Sheriff’s Office. Whether secondary school Principal Brian Corey searched through the phone or had reasonable suspicion to do so is unclear.
“Child pornography doesn’t have an age limit, but obviously you have to take into account, I think, when the laws were made; there probably wasn’t even texting, let alone to this extent, with pictures being e-mailed back and forth,” DeFrancesco said Tuesday.
The student’s iPhone 5 was taken away when he was caught using it, which is against school rules, then handed over to Corey, who called the student’s father and the sheriff’s office when he found the photos.
Use of cell phones during school hours is prohibited in the district’s student code of conduct, except for emergencies or with permission.
The student’s father told local media that Corey did not have the right to access “personal accounts” within the phone and that he had retained a lawyer. The father would not comment to The Enterprise until the investigation is over.
“I can’t say why he [Corey] looked at it or the depth with which he looked at it, at this point,” said DeFrancesco on Tuesday.
Corey had no comment on the incident or cell-phone use in the school, with the investigation not yet completed.
Paul Dwyer, a lawyer hired by the boy’s family, said he hopes the sheriff’s office and the school would agree at a meeting on Friday not to charge the student because of his age.
With cases involving very young teenagers, Dwyer said he does not think courts have dealt with Fourth Amendment search and seizure issues brought up with Internet-connected smartphones, which are a “brand new situation” for him. Instead, he said, the school should discuss it with its lawyers.
“There is definitely an issue, but you know what, from a very practical point of view…those kinds of issues are interesting intellectually, but they only get raised in cases when the matter ends up getting contested,” said Dwyer.
In 2009, cellular equipment was installed on the bell tower of the St. Paul’s Lutheran Church next to the school, granting reception within the school around the beginning of May.
The board policy on cell phone use, passed in June of 2009, is reflected in the code of conduct.
“I don’t think the children are as able to see the circumstances that can be created by their actions,” said DeFrancesco. “In this instance, I’m sure it was something very innocent and giddy that was done, and it’s altered the course of people’s lives.”
Aside from firm school policies, DeFrancesco recommended parents examine their children’s phone use and look at phone bills to find out with whom they are communicating. He compared new communications to driving, saying that children need to be trained on their responsibilities and consequences.
The state’s Cybercrime Youth Rescue Act that took effect last March is meant to channel the flow of minors involved for the first time in sexting crimes from family courts to educational programs run by the state’s Office of Children and Family Services, resulting in dismissal of the charges.
In a 2008 online survey commissioned by the National Campaign to Prevent Teen and Unplanned Pregnancy and Cosmogirl.com, 20 percent of teens between ages 13 and 19, and 11 percent of teen girls between 13 and 16, reported they had sent or posted nude or semi-nude pictures or videos of themselves.
An article published in the journal Pediatrics in 2011 reported that 1 percent of teens between ages 10 and 17 responded in a telephone survey that they had appeared in or created sexually explicit images or videos. The authors were from the Crimes against Children Research Center at the University of New Hampshire.