Berkman University,
v.
Instant Term Papers, Inc.,
and
Maria Morgan.

No. 00-000.

United States Court of Appeals,
Ames Circuit.

Argued November 11, 1998.
Decided December 21, 1998.



OPINION OF THE COURT

Sharie Mendrey
ID # 30489608
Internet & Society

The Internet presents a new paradigm that often challenges our existing modes of operation. One of the perils introduced by the Internet is the immediate accessibility of research papers that are available on the web. The Internet provides instant, easy, inexpensive access to thousands of packaged, pre-written papers that students can use as a substitute for their own work. According to the findings of the Berkman legislature, this vast new opportunity for plagiarism has cast its spell on students who previously did not succumb to such temptation.

In response, the Berkman Legislature enacted the Educational Honesty Act to prevent the increasing incidence of plagiarism over the Internet. In order to achieve its purpose, the act targets the student plagiarists and the organizations that sell to them. It is the viability of this latter feature that we must decide today. Using the private right of action granted in the Act, Berkman University sued Instant Term Papers (ITP) for distributing a paper with knowledge that it might be represented as original work. ITP has countered that the Act is overbroad, restricts the distribution of scholarly research over the Internet, and thus violates the first amendment. We agree.

While the state has a legitimate interest in ensuring the integrity of our schools and preserving the values of our society, they must act carefully when they do so. Their response may not curtail fundamental rights. The Educational Honesty Act represents the State's first attempt at addressing this issue. The legislature did endeavor to strike a balance between promoting legitimate interests and intruding on fundamental liberties, but they did not succeed.

Although the Act criminalizes the students' behavior, concerned institutions have had difficulty successfully detecting instances of student plagiarism. Just as the Internet provides opportunities to students to access plagiarism tools, the Internet also provides an opportunity to institutions to monitor the use of these tools. Thus Berkman University polices its students by using an Internet software program that searches their hard drives for evidence of plagiarism. It is through this search program that the University detected the plagiarism of Maria Morgan. Ms. Morgan claims that this search violated her Fourth Amendment rights. We agree.

    1. ITP's First Amendment Claim

        A. Factual Background

The Educational Honesty Act makes it an offense for anyone to "distribute[]...a term paper knowing or having reason to know that such paper will be submitted...for academic credit and represented as the original work...without proper attribution as to source." BGL 4(a). Both "distribution" and "term paper" are broadly defined by the statute. "Distribution" is defined as "intentional dissemination in any manner." BGL 3(a). A "Term Paper" is "any form of written academic work, in part or in whole, including, but not limited to, a theme, thesis, report of research results, or fictional work." BGL 3(b). Read with these definitions in mind, the statute prohibits all dissemination of almost any written work if the person distributing the work either knows or has reason to know that the work will be improperly submitted for credit. Thus the statute casts an extremely broad net over hundreds, if not thousands, of legitimate Internet sites.

While the requirement of knowledge would seem to mitigate the breadth of this statute, the legislature has ensured that it acts in exactly the opposite way. Rather than requiring the State - or the University in a private right of action - to prove that the distributor met the required element of knowledge, the Act presumes knowledge if the distributor offers a number of features. Knowledge is presumed if the distributor 1) engages in custom research, formatting or writing; 2) adds the student's name to the paper; 3) blocks the sale or distribution of the paper to specific geographic regions or educational institutions; 4) specifies the paper length or word count; or 5) specifies the formatting or method of attribution. While some of these features are clearly designed to ensnare distributors who intend to assist plagiarism - adding the student's name to the paper or blocking future sales to a specified educational institution - the others are not so easily explained. The expansive definitions of the Act, followed by its sweeping presumptions will likely trap innocent and beneficial providers.

The Act does attempt to mitigate these shortfalls by providing safe harbors for distributors. Any distributor will have an affirmative defense if they 1) cooperate with the AcademicHonesty.edu search engine; 2) wait 96 hours before distributing the requested paper; 3) use emerging technology to unalterably mark the origin of the data or 4) distribute the paper only in unalterable format with the original author identified. While these defenses curb some of the defects of the statute, they do not go far enough.

        B. Appropriate Legal Standard

The First Amendment restricts the ability of Congress and State legislatures to regulate in a way that abridges free speech. The EHA acts as a clear restriction on the dissemination of written material, and therefore qualifies as a restriction on speech. While legislatures are not prevented from enacting all speech-related regulations, such regulations must be carefully scrutinized by the courts to determine their compliance with the First Amendment. Whether a regulation will be allowed depends not only on the restrictions it imposes on speech, but also on the type of speech it regulates.

Berkman University argues that the EHA does not violate the First Amendment because it regulates only speech that is integral to illegal activity. Such speech is afforded no First Amendment protection. The EHA does not fit this category, however. Only speech that is intended to aid and abet crime will lose all First Amendment protection. See Rice v. The Paladin Enterprises, 128 F.3d 233, 248 (4^th Cir. 1997). The EHA regulates distribution of speech based on knowledge, not intent, and thus controls sites that do not intend to assist in plagiarism. The EHA must therefore be evaluated for its consistency with First Amendment mandates.

Alternatively, Berkman University suggests that the standard of review should be reduced because the EHA only implicates commercial speech. This statute regulates more than merely commercial speech. Speech that goes beyond the realm of mere advertisement or suggestion of a commercial transaction is not considered commercial speech. Bolger, 463 US at 66-67. Research distributors are engaged in more than mere advertisement, they provide a service and substantive information. A distributor may choose to sell the term paper in question without losing First Amendment protection. Certainly profit oriented bookstores are not deprived of First Amendment protection. Nor should on-line providers of written materials be deprived of this protection.

Because this speech is not commercial, the EHA can only survive if the regulation is narrowly tailored to meet a significant State interest. Ward v. Rock Against Racism, 491 US 781, 797 (1989). In the context of content-neutral regulations "narrowly tailored" does not require least restrictive means. Instead, to qualify as narrowly tailored, the regulation must not "burden substantially more speech than is necessary to further the government's legitimate interests." Id. at 199.

        C. The Legal Standard Applied to the Educational Honesty Act

The legitimate interest of the Berkman Legislature is not in question. The Internet enables cheap, easy, and seemingly anonymous access to a vast resource of term papers. The Berkman legislative findings indicate that students who would not have engaged in plagiarism are doing so now that this new medium has made it so simple and fast. According to the legislature, plagiarism "strikes at the core of the educational process, and thus at the very heart of a free society." While plagiarism does pose a problem which the legislature has a legitimate right and need to address, the fabric of our society does not really seem to be at risk. Certainly, there are larger issues - even within the school context - such as weapons and drug abuse, that pose an even greater threat to society. The Act must be evaluated in this light.

Because Berkman University does demonstrate a legitimate interest, the next step in the inquiry is to determine whether the regulation achieves that interest without unnecessarily burdening the speech in question. Ward v. Rock Against Racism, 491 US 781, 797 (1989); see also United States v. Albertini, 472 US 675 (1985). The EHA goes too far in attempting to protect the prescribed interest. First, the act forbids an extremely broad array of activities. Almost any web page would seem to fit the description of forbidden activity under the statute's broad definitions. Adding in the presumptions only deepens the infirmity of the statute. As currently written, anyone who provides word counts or page lengths with their written work will be presumed to violate the law. While innocent web providers may be able to rebut this presumption in court, requiring expensive litigation necessarily qualifies as an excessive and untenable burden on speech. If the State wants to forbid enterprises such as ITP, it should bear the burden of proving that ITP has violated the law. A law that assumes illegality deserves heightened scrutiny. Such presumptions are inherently dangerous and pose substantial burdens on the targeted parties.

The defenses written in to the law do not provide sufficient protection to cure the defects of the statute. Our constitution will not countenance a law that requires publishers, large or small, to actively allow government access to all of their resources in order to comply with the law. This is effectively what cooperation with the state-approved database would require. The other defenses established by the Act do not alter the analysis. Reliance on emerging, yet non-existent technology does not provide an adequate defense. See Reno v. ACLU, 117 S.Ct. 2329, 2349-50 (1997). Requiring a 96 hour waiting period is similarly untenable. One of the primary benefits of the Internet, a research tool that the legislature claims it wants to strengthen, is the speed with which people can access information. Eliminating this feature is a draconian means of reducing plagiarism. The only defense that could possibly pass constitutional muster is still not sufficient in this context. The statute provides a defense for papers that are distributed in unalterable format with the original author identified. If technology for converting existing papers into such a format were widely and freely available, this might act as a sufficient defense. However, this technology is neither widely nor freely available.

The Act is subject to an additional infirmity. It holds the distributor liable regardless of the acts of the person to whom the paper is given. If a distributor meets the definitions of the statute, they can be penalized even if the material is never used by a student to commit plagiarism. That a distributor can be sentenced to jail when no illegal activity occurs is not only incongruous, it is blatantly unjust.

Alternative, less restrictive, means of preventing plagiarism are available. The educational institution concerned can implement policies that will enable them to detect plagiarism, but even better, these policies could help prevent the situations when plagiarism becomes most attractive to students. If professors require students to turn in increasing segments of their papers as the semester continues the professors will be more likely to detect plagiarism when it occurs and the students will not need to engage in plagiarism as a last minute escape mechanism. Other means of teaching in this new environment, means that would help prevent and detect plagiarism, can be found with a little creativity. Rather than requiring this new medium to adapt to the old world, we should prefer a world that adapts to the new medium instead. Certainly we can not abridge fundamental freedoms in order to maintain our sense of stability when other options are available.

We may not always be able to turn to our communities to fight the battle to maintain integrity and value. In this case, however, parents and educators may be more successful than this flawed legislation. Through improved teaching techniques, educators can ensure that students learn the value of their own hard work. Instead of furthering this goal, this legislation will teach our students that we do not trust them. It will also teach our students that the parties who are punished are not those who make the choice to plagiarize, but instead are those who make the plagiarism possible. Thus our students will not learn a lesson in responsibility, but instead will learn how to place the blame elsewhere.

Whether the EHA could survive constitutional scrutiny if the presumptions of knowledge were eliminated and the safe harbors broadened is not for this court to decide. As the statute is currently written, it fails to meet the requirements of the First Amendment. The Act places a significant burden on speech that cannot be supported. We therefore declare the statute void on its face.

    2. Maria Morgan's Fourth Amendment Claim

        A. Factual Background

While the Educational Honesty Act enables Universities and State officials to target term paper distributors, the statute does not help detect individual instances of student plagiarism. In order to do this Berkman University developed and implemented a search program that reviews student computer hard drives and reports back any material downloaded from a known term paper mill. It was just such a search that revealed the paper turned in by Ms. Morgan for credit in her American Culture class. As a result of her plagiarism, the University suspended her from school for one year. In response, Ms. Morgan filed suit against the University claiming that her Fourth Amendment rights had been violated by the search.

The University search program differs significantly from a "typical" search. In fact, it has been likened to the "perfect" search because it only returns positive results. Using the Internet, the University software program sweeps student hard drives once every two weeks. During the sweep, the software searches for downloads from known term paper mills. If a student has downloaded information from a targeted site, that material will be returned to the University. No other information about the contents of the hard drive is returned to the University. No human eyes ever see the other contents of the hard drive. Only material that has been downloaded from a term paper mill is viewed by University staff.

The University's search is minimally inconveniences students in the operation of their computers. While the search may cause the processing speed of the student's hard drive to slow momentarily, this effect can not be differentiated from the variations in Internet connection speed that normally occur absent the search.

Nonetheless, the University does conduct a search and it requires all students to participate. All Berkman University courses require web based participation and this participation can only be achieved using the University software and network. It is this software that then facilitates the search in question during the Internet connection. University materials disseminated with the Internet software inform the students that the searches will take place, but the searches are mandatory and there is no opportunity to opt out. By necessity, the searches are conducted on all students' computers without a warrant or probable cause.

The question we must answer today is whether such a search violates the students' Fourth Amendment rights.

        B. Fourth Amendment Analysis

The protections of the Fourth Amendment are not absolute. The constitution only prevents the state from conducting unreasonable searches. Thus Maria Morgan's rights are violated only if the Berkman University program constitutes a search, and then only if that search was unreasonable under the circumstances.

Whether the act in question constitutes a Fourth Amendment search turns on whether "the person invoking its protection can claim a 'justifiable,' a 'reasonable,' or a 'legitimate expectation of privacy' that has been invaded by government action." Hudson v. Palmer, 468 US 517, 525 (1984). An expectation of privacy is "justifiable" if the person concerned has "exhibited an actual (subjective) expectation of privacy" and the expectation is one that "society is prepared to recognize as 'reasonable.' " Id. citing Katz v. United States, 389 U.S., at 360, 361 (Harlan, concurring opinion). The Supreme Court has since emphasized the second of these two requirements. The key is to determine whether society recognizes the expectation of privacy as reasonable. If a person has a reasonable expectation of privacy, and that privacy is violated, then a search has occurred. Hudson at 525.

If a search has occurred, it is then the duty of the court to determine whether the search was reasonable and thus constitutionally permissible, or whether the search was unreasonable and thus violated the Fourth Amendment rights of the person in question. Absent unusual circumstances, the Fourth Amendment requires state actors to obtain a warrant before conducting a search. "Searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under Fourth Amendment, subject only to a few specifically established and well delineated exceptions." Katz at 356-357. In this way, the constitution imposes judicial restraint on the State in order to prevent inappropriate searches.

As indicated, the warrant requirement is sometimes waived in unusual circumstances. One such exception is the elementary or secondary school setting. "Although the underlying command of the Fourth Amendment is always that searches and seizures be reasonable, what is reasonable depends on the context within which a search takes place." New Jersey v. TLO, 469 US 325, 337 (1985). Thus in a secondary school setting a search may be considered reasonable without a warrant. In this context, courts must balance the need for the search against the invasion that occurs to determine whether the search is reasonable. Id..

        C. The Legal Standard Applied to the Berkman University Search

Berkman University claims to have created the "perfect" search, yet it then denies that its actions constitute a search at all. Instead, they claim that they are simply conducting a sweep which does not amount to a "search" for purposes of the Fourth Amendment. While the acuity of the search is laudable, it is still a search. Maria Morgan has a legitimate expectation of privacy in the contents of her hard drive. The personal computer, a device which does not reveal its contents for inspection, is a place where privacy is legitimately expected. "[T]he Fourth Amendment provides protection to the owner of every container that conceals its contents from plain view." TLO at 337. This is even more true when the computer is located in the student's home, an area that has traditionally been considered sacrosanct by the law.

While Katz shifted the concept of expectation of privacy toward the person and away from property, it did not eliminate privacy expectations in property altogether. Instead, the Katz Court stated that, "the Fourth Amendment protects people--and not simply 'areas'--against unreasonable searches and seizures." Katz at 353 (emphasis added). Thus, both property and people are protected against unreasonable searches. Although this may have implications for future technology, it is less relevant to our issue. The hard drive searched by the University was the property of Maria Morgan. By searching the contents of her hard drive, the University invaded a space in which she had a legitimate expectation of privacy. That technology now allows government actors to "enter" our home in seemingly unintrusive ways, does not make this less of a search. Contrarily, in light of developing technology, it is ever more important to maintain the boundaries of privacy and preserve the rights that the constitution prescribes.

As the University argues, the inconvenience of the sweep is minimal. In fact, a student may not even know that the search occurred unless the student has plagiarized and is caught. The University therefore claims that the sweep does not qualify as a "search." We applaud the University for the precautions it has taken in ensuring that a student is not punished unless the University finds evidence not just of a download, but also of plagiarism. Still, we must conclude that the sweep conducted by the University constitutes a "search." As long as there is a violation of a legitimate expectation of privacy, a search has occurred. The search need not create chaos, wreak havoc, or even be noticeable to the subject. The purpose of the Fourth Amendment is not merely to prevent disturbance, it is to protect our citizens from the inappropriate prying of law enforcement.

Additionally, the precautions taken by the University are not absolute. Any student who has downloaded material from a known term paper mill will be subject to review by University officials. It is possible that this information may affect the student, either through actions taken by University administrators or if the information is somehow leaked to others. This possibility may deter students who would otherwise visit term paper sites as part of their research process from doing so even if the student had no intention of plagiarizing. This type of chilling is extremely troublesome. It is exacerbated by the breadth of sites that may be classified as known term paper mills. Web pages are easily added to the AcademicHonesty.edu page which is used to determine the sites included in the University search. Sites such as the New York Times and Lexis-Nexis are probably a part of the database. Any student who has downloaded material from these sites will be under suspicion by University administrators.

Once it is settled that a search has occurred, the next step is to determine whether that search was reasonable. Before we can judge the reasonableness of the search, we must determine the appropriate standard for this setting. The University environment, while analogous in some ways to other school settings, is also significantly different. Almost all students at the university level are adults in the eyes of the law. Additionally, one of the purposes of a University is to help young adults transition from the protected, home environment to an environment where they are responsible for themselves. With this burden of responsibility also comes the benefits of privacy and control over their own lives. Furthermore, many university students live off-campus in an environment much more analogous to the "real world" than to a secondary school. The standard of reasonableness established for secondary schools is therefore not necessarily applicable to this case.

Nonetheless we do not believe that a warrant should be required in all circumstances in a university setting. Thus we will apply a balancing test similar to the one used in secondary schools. The test demands that the courts balance the need for the search with the invasion that occurs. In a university setting, however, the state must bear a greater burden of demonstrating the reasonableness of the search than they would in a secondary school. In this instance we have identified the government interest in preventing plagiarism as legitimate. As noted above, however, this interest pales in comparison with other state interests such as preventing loss of life or waging the war against drugs. Thus, the University has a heavy burden to bear in demonstrating that its search is reasonable under these circumstances.

The University search program is designed to minimize the invasion experienced by students: the inconvenience is minimal; only downloads from term paper mills are returned to the University; other contents on the hard drive are never seen by humans. Despite these precautions, the search does invade the privacy of the students. The computer is the modern version of a diary for many people. The idea of government actors watching over ones actions by rummaging through the contents of your hard drive is reminiscent of "Big Brother," and certainly constitutes an invasion. Students may not be secure in the feeling that the software program will only download the information that the University claims.

While the current software is set only to return information on downloads from known term paper mills, the software is capable of detecting much more than that. The University claims that its reputation for fairness provides it with sufficient incentive to restrict its use of the software. We can not allow the Fourth Amendment freedoms of students to rest on such uncertain terms. Software that has this incredibly powerful capability can not be run in such an informal manner. There are no affirmative requirements on the University to demonstrate that the software is performing only those functions that it currently claims to be conducting. Absent a clear procedure to ensure that the use of the software is not expanded beyond these narrow confines, the search cannot be upheld.

The search assists the State in detecting and preventing plagiarism. If students know that they are likely to be caught, they will be less prone to engage in the pernicious behavior in the first place. As discussed earlier, however, the University has other means of preventing and detecting plagiarism that do not invade the students' privacy. These means include simple changes in teaching techniques such as requiring drafts of papers throughout the semester. In this instance, the University did not demonstrate that it had tried any of these other means prior to launching the search program. If there are less invasive alternatives available, then the search cannot withstand constitutional scrutiny. We simply can not waive students' fundamental rights under such circumstances.

    3. Conclusion

The Internet has provided students and administrators with new opportunities. Students now have cheap, easy and immediate access to thousands of pre-written and packaged term papers. The temptation to use such sources as ones own work has thus increased. Likewise, administrators now have an easy, immediate and stealthy means of policing their students' actions. While society must inevitably adapt to this new technology, it is up to the courts to maintain a balance of freedom in this new paradigm.