The lower court determined that the University did not abridge Ms. Morgan’s Fourth Amendment rights when it searched her hard drive. The court also held, however, the Educational Honesty Act violated the First Amendment.

1. THE EDUCATIONAL HONESTY ACT VIOLATES THE FIRST AMENDMENT BECAUSE THE STATUTE’S BROAD PROSCRIPTIONS ARE NOT SUFFICIENTLY TAILORED TO FURTHER BERKMAN’S DUAL INTERESTS IN MINIMIZING PLAGIARISM AND ENCOURAGING THE USE OF COMPUTER NETWORKS AS RESEARCH TOOLS.

   The First Amendment’s concise, but persuasive, mandate that “Congress shall make no law abridging the freedom of speech . . .” U.S. Const., amend. I, applies to the States through the Due Process Clause of the Fourteenth Amendment. See, Bigelow v. Virginia, 421 U.S. 809, 811 (1975). Despite the seemingly expansive prohibition, the First Amendment has not been read absolutely. Under limited circumstances, a State may regulate the dissemination of information. But, “[i]t hardly needs repeating that ‘the constitutional guaranties of freedom of speech forbid the States to punish the use of words or language not within narrowly limited classes of speech.’” Hess v. Indiana, 414 U.S. 105, 108 (1972).

1. Criminal Activity

   Because the First Amendment is at the core of liberty, a court must necessarily scrutinize carefully any State action silencing speech. Unless within “narrowly limited classes” -- speech is afforded some level of First Amendment protection. See id.

1. Because ITP offers only pre-written papers that are not carefully tailored for the recipients’ desires and disclaims any intent to foster plagiarism, ITP does not aid and abet a crime by distributing scholarly material.

   One of the “narrowly limited classes” of speech receiving no First Amendment protection is speech that aids and abets a crime. For a court to remove speech from all constitutional protection, it must find that the actor intended to aid and abet a crime. See Rice v. The Paladin Enterprises, 128 F.3d 233, 248 (4th Cir. 1997).

   The critical word is intent. Courts have suggested that a “heightened intent” may be required. Id. at 247. On its face, the Educational Honesty Act does not require intent. The EHA punishes distributors based merely on knowledge, and in certain circumstances even presumes knowledge. Knowledge (and presumed knowledge) is a far cry from intent. The 4th Circuit recently observed:

   In order to prevent the punishment or even the chilling of entirely innocent, lawfully useful speech, the First Amendment may stand as a bar to the imposition of liability on the basis of mere foreseeability or knowledge that the information one imparts could be misused for an impermissible purpose. Id.

   As applied to ITP, Berkman expectedly attempts to analogize this case to the term paper mill cases of the early 1970s. Initially appealing, reflection of the facts reveals their distinguishability from the case here.

   The Magee court observed three aspects of the defendant’s conduct that when combined indicated an intent to foster plagiarism. 423 N.Y.S. 2d 417, 419 (1979). Magee “design[ed] and tailor[ed his papers] for student cheating; the papers had “utility in the world of scholarship;” and “seductive sales literature” suggested plagiarism. Id. No combination exists here. ITP does not design the papers for cheating; they are pre-written and are not altered upon request. ITP’s papers have utility as a secondary source. Also, the State provided no evidence that ITP advertises its products.

   Sanskiit, 323 N.Y.S. 2d 343, is also distinguishable from this case. There, (1) the defendant advertised in college newspapers and handed out fliers, (2) some papers were custom written, and (3) defendant asked for the name of the school, course, and instructor (to block subsequent sale to those entities). When taken together, the court concluded that Sanskiit intended to aid plagiarism despite her disclaimers. Id. None of those characteristics is present here. The State provided no evidence of ITP advertising. ITP does not custom write papers. ITP does not ask for the name of the school, course, or instructor by which it will block future distribution. Consequently, ITP’s express disclaimers are much more than tongue-in-cheek pious disavowals.

   On its face, the EHA circumvents the intent requirement. On this ground alone, the court should subject the law to Constitutional scrutiny. As applied to ITP, there is no evidence (let alone the substantial evidence required Magee and Sanskiit) to support a conclusion that ITP intended to aid in plagiarism. The court should subject the EHA to First Amendment inquiry.

2. Commercial Speech

   It is now beyond argument that commercial speech receives First Amendment protection. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 759 (1978) (“VA Bd. of Pharmacy”). Admittedly, the protection accorded commercial speech is qualified, but it is “nonetheless substantial.” Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 68 (1983). Because the level of First Amendment guardianship depends on the status of speech as commercial or noncommercial, it is necessary to determine the proper classification of ITP’s scholarly distributions.

1. Since ITP’s distribution of scholarly research is not an advertisement and did not propose a commercial transaction with the recipient, the court should deem it noncommercial speech.

   Attempting to synthesize the “commercial speech” cases and provide some needed guidance to lower courts, the Supreme Court identified three characteristics of “commercial speech”: (1) speech which does no more than propose a commercial transaction; (2) advertising for specific products; and (3) an economic motivation for distributing materials. Bolger, 463 U.S. at 66-67.

   To be sure, the presence of one characteristic alone does not compel a conclusion that speech is commercial. Id., at 67. Though a determination that speech is commercial is not contingent upon the presence of all three characteristics, id., at 69 n.14, a “combination of all these characteristics . . . provides strong support for . . . the characterizat[ion] as commercial speech.” Id., at 68.

   The defendant in Bolger sent out a mailer including advertisements for specific contraceptive products. The defendant clearly had an economic motivation in distributing the mailer with advertisements and it proposed a commercial transaction with the recipient. All three characteristics were present. ITP’s free distribution of academic research, however, manifests only one of these characteristics. That ITP’s activity is not an advertisement is beyond doubt. And, while ITP may have had an economic motivation in disseminating information freely (generating advertising revenues in other transactions with other entities) the exchange with Ms. Morgan did not propose a commercial transaction with her. The court should be wary of classifying speech exhibiting only one of three characteristics as commercial.

2. Even if the court determines that ITP’s distribution of useful scholarly material is commercial speech, the EHA fails the “substantial” commercial inquiry.

   “Speech is . . . protected even though it is carried in a form that is ‘sold’ for profit.” VA Bd. of Pharmacy, 425 U.S. at 761. Commercial speech is entitled to substantial protection of the First Amendment from intrusive State infringement on the freedom to disseminate information.

   So long as the communication is neither misleading, nor related to unlawful activity, the government’s power to regulate commercial speech is circumscribed. Central Hudson Gas & Electric Corp. v. Public Service Comm’n of New York, 447 U.S. 557, 564 (1980). A court must invalidate a State infringement of commercial speech unless: (a) the State’s interest in proscribing commercial speech is substantial; (b) the regulatory technique directly advances the State interest involved; and (c) the infringement on speech is no more extensive than necessary to serve the State’s interest. Id.

1. Because numerous legitimate, less intrusive alternatives are available, the EHA is more extensive than necessary.

   A State attempting to justify a restriction on commercial speech must establish that its proscriptions are “no more extensive than necessary.” Central Hudson Gas, 447 U.S. at 564. Concededly, the “no more extensive than necessary” standard is less exacting than the “least restrictive means” inquiry, but the State must affirmatively demonstrate that the cost of the proscriptions were “carefully calculated” in light of the speech rights impinged to produce a “reasonable fit.” State University of New York v. Fox, 492 U.S. 469, 480 (1989). In other words, if numerous legitimate, less intrusive means exist that would further the State’s interest, the “fit” is unreasonable, and the restriction on speech is more extensive than necessary. Rubin v. Coors Brewing Company, 514 U.S. 476, 490-91 (1995).

   The statute in Rubin prohibited beer labels from displaying alcohol content. Assuming that the government’s interest in curtailing a “strength war” was substantial, the Supreme Court observed:

   “[Coors] suggests several alternatives, such as directly limiting the alcohol content of beers, prohibiting marketing efforts emphasizing high alcohol strength, or limiting the labeling ban only to malt liquors. . . . We agree that the availability of these options, all of which could advance the Government’s asserted interest in a manner less intrusive to [Coors’] First Amendment rights, indicates that [the statute] is more extensive than necessary.” Id.

   The options available to Berkman are strikingly analogous. Berkman could: (1) directly punish plagiarists; (2) prohibit marketing efforts emphasizing plagiarism; or (3) limit the ban on distribution of term papers to those entities who only sell papers. Each of these alternatives would advance Berkman’s dual interests of curtailing plagiarism and fostering the Internet as a research tool in a less intrusive manner than the EHA’s overreaching prohibitions.

   Even more, the schools, themselves, could alleviate the menace of plagiarism without abridging the right of free speech. Teachers, for example, could take an active role in the writing process by tailoring assignments to specific aspects of the class discussions or lectures. “Canned papers” would then be easily recognized. Additionally, teachers could require students to hand in drafts. This would frustrate the tendency to procrastinate, a tendency identified by the EHA as inducement to plagiarize. 45 BGL sec. 2(a)(3). Student-teacher meetings could be mandated - either during or after the paper’s completion - allowing assessment of the student’s familiarity with subject.

   The existence a cornucopia of significantly less intrusive, yet equally (if not more) effective means of advancing Berkman’s interests, demonstrates the State’s failure to “carefully calculate” the costs EHA would exact on protected speech. Incredibly, Berkman, who must affirmatively establish a “reasonable fit,” Fox, 492 U.S. at 480, failed to show that less intrusive measures were attempted, let alone considered.

   Along the same lines, in Central Hudson Gas, 447 U.S. at 570, the State banned promotional advertising of energy use. The Court noted: “[T]he energy conservation rationale . . . cannot justify suppressing information about electric devices or services that would cause no net increase in total energy use.” Id. Evidently, the Court reasoned that because the proscription suppressed information having no effect on the State’s interests, the statute was “more extensive than necessary.” See id.

   The EHA’s ban reaches distributions of scholarly material having no impact on plagiarism. Even if Morgan wrote her own paper, ITP nevertheless could be subject to the stiff criminal penalties of the EHA. Like the prohibition in Central Hudson Gas, which suppressed information not affecting energy conservation, the EHA suppresses speech not affecting plagiarism. In fact, the EHA chills the exchange of scholarly material, for distributors will be reluctant to offer their research over the Internet fearing State repercussions.

   Because a myriad of legitimate, less intrusive measures are available, but were never attempted, let alone considered, Berkman failed to affirmatively establish that it “carefully calculated” the costs of its proscription. Moreover, since the EHA suppresses speech not affecting plagiarism, the statute is clearly “more extensive than necessary,” and is unconstitutional.

2. Because the narrow affirmative defenses utilize non-existent technology, contravene one of the major advantages of a fully protected medium, and are markedly cost-prohibitive, they are an ineffective means of “tailoring” the Constitutionally infirm statute.

   Berkman’s reliance on its narrow affirmative defenses as evidence of “tailoring” is wholly unpersuasive. The safe harbor for experimental technologies has no force since no such technology yet exists. See Reno v. ACLU, 117 S.Ct. 2329, 2349-2350 (1997)(noting that reliance on non-existent technology is unwarranted). Waiting ninety-six hours to distribute information negates one of the most advantageous features of the Internet - speed - by requiring distribution of scholarly material to wait in limbo for the better part of a week.

   Compliance with the other affirmative defenses is cost-prohibitive. There can be no argument that the technology required to make distributions electronically unalterable is costly, especially to noncommercial speakers. In Reno, the Supreme Court recognized that the statute provided an affirmative defense for speakers who “verify” credit card ownership. 117 S.Ct at 2349. Nonetheless, because the verification is costly, especially to noncommercial speakers, the narrow affirmative defense was insufficient to save the statute. Id. Similarly here, the cost of providing electronically unalterable products is costly. Thus, this safe harbor is insufficient to save the statute.

   “Full cooperation” with the State-approved Internet-based search engine requires an entity to turn over its entire catalogue to the search engine. The State asserts that because the engine will only retrieve papers if a “matching chunk” exists, the viewers are not “seeing anything they don’t already have.” From this it follows that cooperation is not cost-prohibitive.

   Appealing on its face, the argument flounders upon recognition that almost all scholarly research cites and quotes other works. Anybody with access to the search engine can enter an oft-cited “chunk” from a famous work, and retrieve papers containing the quote. For instance, one typing in “Parting is such sweet sorrow,” or “Four score and seven years ago . . .” is sure to retrieve many pieces examining Shakespeare’s Romeo and Juliet and Abraham Lincoln, respectively. Therefore, researchers need not visit ITP to get a look at ITP’s papers. Those desiring a profit from sales of papers, those garnering advertising revenue from visits, and those wanting “hits” to their site with no profit motive are all cut out of the research loop they helped to create.

Because the narrow affirmative defenses are non-existent, contravene one of the major advantages of a fully protected medium, and are cost-prohibitive, they are an ineffective means of “tailoring” the Constitutionally infirm EHA.

3. Content-Neutral Regulations
   
   
1. Because the Educational Honesty Act fails the commercial speech inquiry, it a fortiori fails the more taxing content-neutral scrutiny, particularly because it burdens substantially more speech than necessary.

   Assuming that a proscription on speech is content neutral, a court can only uphold a restriction of speech if: (a) the State’s interests are significant; (b) the means utilized are “narrowly tailored” to advance the interests; and (c) ample alternative channels remain available. Ward v. Rock Against Racism, 491 U.S. 781, 797 (1989). Though, in this context, “narrow tailoring” does not require “least restrictive means,” the challenged restriction must not “burden substantially more speech than is necessary to further the government’s legitimate interests.” Id. at 799.

   An example will dramatically illustrate the EHA’s overreaching scope. A Berkman University student logs on to LEXIS/NEXIS and enters “First Amendment” & “overbroad” into a search of the “Law Review Library.” LEXIS/NEXIS’s search engine (crawler) searches its database and returns law review articles with the identified terms. The student then downloads one of the articles.

   Incredibly, LEXIS/NEXIS violated the EHA. Clearly, there was a “distribution” (“intentional dissemination in any manner”), and law review articles fall within the definition of “term paper” (“any form of written academic work. . .”). Mens rea is presumed because the distribution occurred over a “computer network” and because LEXIS/NEXIS specifies the length of the article in the “Information” command of the “File” menu. 45 BGL sec. 4(b)(5) (presuming mens rea if distributor specifies paper length). Finally, LEXIS/NEXIS does not escape the EHA, for it does not come within any of the narrow affirmative defenses.

   Doubtless the statute was not intended to reach so far. However, acknowledging the legitimacy of the hypothetical, it is beyond argument that the EHA is not “narrowly tailored” because it burdens substantially more speech than is necessary to further the government’s legitimate interests. Ironically, by criminalizing such research, the EHA actually frustrates another of its purposes - encouraging the use of the Internet as a research tool. 45 BGL sec. 2(b)(1).

   In short, it is really unnecessary to subject the EHA to the more exacting inquiry of content-neutral regulations because it fails the more deferential scrutiny for commercial speech. Nonetheless, the incredible sweep of the EHA vividly demonstrates that the statute is not “narrowly tailored” to pass Constitutional muster. Therefore, the court should affirm the judgment of the lower court and invalidate the EHA.

2. THE SEARCH OF MS. MORGAN’S HARD DRIVE WAS UNREASONABLE AND THEREFORE VIOLATED HER FOURTH AMENDMENT RIGHT TO BE SECURE IN HER PAPERS.

   It has been pronounced many times that students do not leave their constitutional rights at the “schoolhouse gates”. See Tucker v. DesMoines, 93 U.S. 503, 506 (1969). The Fourth Amendment’s proscription against unreasonable searches and seizures restricts the University’s right to search students’ belongings. This should include hard drives. The Fourth Amendment has been incorporated to apply against the states through the Due Process Clause of the Fourteenth Amendment. See Mapp v. Ohio, 367 U.S. 643 (1961). Berkman University is a public University run by the state of Berkman. Its teachers and administrators are school officers; an unreasonable search by the University is a violation of a student’s Fourth Amendment rights. See New Jersey v. T.L.O., 469 U.S. 325 (1985).

   The search of Ms. Morgan’s hard drive conducted by the University is unreasonable by any standard. The Fourth Amendment carries a presumptive warrant requirement. Under the “special needs” jurisprudence a few clearly delineated exceptions allow the state to conduct a search without a warrant. One such exception is set out in T.L.O. In T.L.O., the Supreme Court ruled that schoolchildren have a lowered expectation of privacy while on campus. Because of this, a public school official may search a student’s belongings if the search is reasonable under the circumstances. The Supreme Court approved a second exception in Vernonia School District v. Acton, 515 U.S. 646 (1995). Here the Court ruled student athletes have a further lowered expectation of privacy and approved a program of suspicionless random drug testing for high school athletes.

   T.L.O. and Vernonia do not apply to the case at hand. They can be distinguished in two significant ways. First, the justifications given for the lowered expectations of privacy of “schoolchildren” are simply nonexistent at the University level. Second, both of these cases deal with a stronger state interest than plagiarism - namely, epidemic drug use by minors. Although it is unclear that the University needed to get a warrant to search Ms. Morgan’s hard drive (due to the administrative nature of the government interest and the exigencies inherent in electronic evidence), the administration did need probable cause. They searched her computer with no suspicion at all. However, even if this court were to extend the T.L.O. or Vernonia standards to the facts of this case, the search remains unreasonable.

   A college student’s expectation of privacy is not lowered in the same way that the privacy interests of “schoolchildren” are. A University student has a subjective reasonable expectation of privacy that society should be prepared to protect as legitimate. Students at the elementary and secondary level have a lowered expectation of privacy because students “spend the school hours in close association with each other” and “[T]eachers have a degree of familiarity with, and authority over, their students that is unparalleled except perhaps in the relationship between parent and child.” T.L.O., 469 U.S. at 348. It is ridiculous to assert that the situation at the university level is in any way similar. See Derdeyn v. University of Colorado, Boulder, 832 P.2d 1031 (Colo.Ct.App. 1992) (holding that athlete drug testing similar to that in Vernonia is unconstitutional at the college level), but see also People v. Haskins, 48 A.D.2d 480 (N.Y. App. Div. 1975) (holding that university search should be judged by same standards as high school searches).

   Additionally, any suggestion that the University’s memo regarding the search policy lowered students’ expectation of privacy is unfair. Given the form of the warning, it is highly unlikely that the school’s policy is familiar to the students at Berkman. In any case, notification that the University violated students’ rights can not cure that violation. Absent an unhealthy level of paranoia, people in general, students included, tend to believe that their hard drives are secure repositories for their electronic papers and effects. The hard drives of personal computers should be protected under the Fourth Amendment. People have a constitutional right to be secure in their papers, and the personal computer is quickly becoming the preferred method of creating and storing these ‘papers’, albeit in electronic form. Every function once played by physical calendars and datebooks, letters, checkbooks and bank statements, financial ledgers, and even very personal diaries is increasingly played by electronic versions on personal computers. The form of the ‘papers’ should not matter. The Court should be prepared to recognize Ms. Morgan’s expectation of privacy as a legitimate one.

   Even if this court decided to extend the exception to the probable cause requirement delineated in T.L.O., the search was still unreasonable. Under T.L.O., a search must be reasonable under all of the circumstances. In determining whether a search is reasonable two separate inquiries are made. First, the search must be justified at its inception. Second, the scope of the search (that is, the severity of the intrusion into the private realm) must be reasonably related to the circumstances that justified the search in the first place. The second question does not need to be addressed in the present case; it is clear that, prior to the search, Berkman University had not even a hunch that Ms. Morgan had plagiarized.

   T.L.O. requires a reasonable level of suspicion, essentially the predicate for search explained in Terry v. Ohio, 392 U.S. 1 (1968). Therefore, the search was not justified at its inception. Had a teacher suspected Ms. Morgan of turning in work that was not hers, her hard drive might have been a logical place to search for evidence. And in that case a search of the drive using the computer/server connection might be wholly appropriate. The fact remains that Ms. Morgan was suspected of nothing. The fact that the university actually found evidence against Ms. Morgan does not cure the violation of her rights. The University must be deterred from encroaching on its students’ reasonable expectations of privacy. It is important to remember that the University’s program of searching student hard drives violated not only Ms. Morgan’s Fourth Amendment right, but the right of every single student attending Berkman University.

   Vernonia, which allows blanket searches in the form of drug testing for high school athletes, is also not an appropriate precedent for blanket searches by university administrators. In her concurring opinion, Justice O’Connor comments, “For most of our constitutional history, mass suspicionless searches have been generally considered per se unreasonable within the meaning of the Fourth Amendment.” Vernonia, 515 U.S. at 667. However, even under the reasoning of Vernonia, the hard drive sweep performed by Berkman University is unconstitutional. The facts of the case at hand are distinguished from the facts of Vernonia in several pertinent instances.

   First, although the University has a legitimate interest in maintaining its academic integrity, there is no “compelling need” that justifies the relaxation of Fourth Amendment restrictions. Plagiarism is simply not as dangerous to students as drug use is. Vernonia justifies the drug testing of student athletes based on the sheer danger of bodily injury to students. Secondly, the students in Vernonia were all minors. The vast majority of college students are legal adults. The maturity level of the “schoolchildren” in question surely has some bearing on the level of the school’s right to search. Thirdly, the record does not clearly show the epidemic of discipline problems present in the record of Vernonia. As part of the Educational Honesty Act, the Berkman legislature found that plagiarism had become a serious problem in the state, but that Act makes specific mention that the problem is concentrated at the secondary school level. Without any additional showing, it is difficult to believe that the threat is truly “epidemic” at Berkman University.

   However, even if this court determines that Vernonia is the proper standard, the case at hand fails to meet it. Under Vernonia, mandatory drug testing would not be allowed against the student population at large. See Trinidad School District No. 1 v. R. Lopez, 963 P.2d 1095 (Colo. Sup. Ct. 1998) (ruling that the Fourth Amendment prohibits mandatory drug testing of students participating in extracurricular activities) and Todd v. Rush County Schools, 133 F.3d 984 (7th Cir. 1997) (ruling that mandatory drug testing of students involved in extracurricular activities was constitutional, but emphasizing the voluntary nature of that involvement). Use of the University’s server is not voluntary. Web based participation in courses is mandatory, and due to the University’s firewall, this participation can only occur through direct connection to the University’s server. Perhaps it can be argued that enrollment at a University is voluntary in and of itself, but it goes against public policy to discourage individuals from furthering their education.

   The case at hand also fails a second major requirement of Vernonia: the suspicionless search must be an efficacious means for addressing the problem. The server sweep is not an effective tool for combating plagiarism at the University. If the University investigated every “positive” return, the administrative costs would be extremely large, given the legitimate reasons a student might have for visiting a term paper mill website. Additionally, the District Court seems to forget that plagiarism occurs in non-electronic situations as well as over the internet. Not every plagiarized paper is downloaded from an online term paper mill. Those that are are extremely easy to delete from one’s hard drive. Other methods of investigation, which do not entail blanket suspicionless searches, are available for dealing with the problem supposedly addressed by the server’s search. First, there is the good old-fashioned way: teacher suspicion. The supposedly rampant problem of plagiarism in the schools of Berkman is not necessarily the fault of the internet; surely teachers who are attentive to their students are attentive to the work turned in by those students. Additionally, should this court uphold (and the state enforce) the Educational Honesty Act, the AcademicHonesty.edu search engine and other available methods to search the internet provide a far more effective and efficient method for investigating internet plagiarism. This method is to be preferred from a Fourth Amendment standpoint in that it is not intrusive at all; in the constitutional sense, it is not even a search.

   As a final matter, it is important to note that the search conducted by the University is not minimally intrusive. The frequency of the intrusion, however “minimal” in each separate instance, compounds the intrusion into the student’s private realm. The negative feeling that “Big Brother” is watching must permeate the student population. In determining that the intrusion into the student’s privacy is minimal, the district court relied on a notion that because the search was barely noticeable it was not intrusive. However, the level of underhandedness of a search is not equivalent to its intrusiveness. The lower court seems to reason, “What you don’t know can’t hurt you.” But by this reasoning, the court would allow the police to secretly search an individual’s home. A violation of the Fourth Amendment would not be occur unless the individual realized that his home had been invaded. This is not state of Fourth Amendment jurisprudence.

   Rather, intrusiveness is measured by the collateral damage inflicted on an individual. At first blush the program used by the University may seem failsafe. The University claims the search returns only “positive” results; that statement is true, but it is also is misleading. The school’s legitimate interest is not in stopping students from visiting and downloading material from suspicious sites. Such an “interest” implicates impermissible interference with First Amendment rights. It is not against the law (or Berkman University rules) to visit the website of an online term paper mill. Nor is it a violation to download a file from such a website, even if that file is a term paper. A violation only occurs when a student turns in work not written by her as her own.

   Regardless of what the University’s administration believes, there are legitimate reasons for a student to visit an online term paper mill’s website. The information returned by the search can say nothing about whether a student actually turns in plagiarized material (the state’s true legitimate interest.) The search’s “positive” returns may say nothing about whether a student commits plagiarism, but papers downloaded from the internet can indicate very private things about a person’s interests. No statistics are in the record regarding the number of students who browse “suspicious” sites for curiosity’s sake only, but this number is surely not negligible. Other students may downloaded term papers for research, a purpose that Berkman University should encourage, not condemn.

   While the University’s suspicion of an individual student is not made public unless a professor believes a paper turned in by that student is plagiarized, this does not mean that a false “positive” comes without cost to the student. Under the University’s search policy, any student who so much as clicks on a link to a term paper mill is immediately placed under suspicion. Even if a student is wholly innocent and word of the search results reaches no one save University administrators and the student’s professors, this cloud of taint can have an unfortunate effect on the student’s education. Should word of the “offense” accidentally spread further, the damage could be devastating.

   The bottom line is that students who might be inclined to visit “suspicious” sites for legitimate reasons may be chilled from doing so. While this chilling effect may be precisely what the university desires, it is not a legitimate governmental interest. As such, the search performed by the University server is an unconstitutional search. It violated Ms. Morgan’s Fourth Amendment right, and continues to violate the rights of every student enrolled at Berkman University.

Attorney for Ms. Maria Morgan