Should Schools Stalk Students Online to Prevent Cyberbullying?
In Southern California, a school district has retained a private firm to scour the Web and look for public posts, photos, kiks, Tweets, and other communications made by its students. Its stated purpose is to prevent students from harming others—and, in particular, to stop cyberbullying. But as news stories reveal, the company that does the monitoring also finds out a lot of other information, like who might be getting high in class, or who might have broken the law when off campus.
The Glendale Unified School District has hired the company Geo Listening, a social network monitoring service, to communications for about 14,000 middle school and high school students. The Glendale plan is one that may soon be coming to a school near you. Chris Frydrych, the firm’s founder and CEO expects to be monitoring about 3,000 schools worldwide by the end of the year.
The Glendale District is paying $40,500, and in exchange, the company’s employees and their computers scour public posts by students and alert school administrators when they find something the computers think should merits reporting. As of now, no students have been disciplined as the result of the plan, but some say that the program still infringes on student privacy.
In this column, I will outline the contours of the current program, and some of the potential pitfalls of trying to match public posts with student profiles. I will also assess the privacy concerns at issue, and the challenges that school districts and their students will face, when surveillance leads to possible discipline for conduct that occurs outside of school grounds.
Is Glendale Stalking Students in Cyberspace?
Glendale has hired Geo Listening to monitor the public postings on social media by middle school and high school students, searching for signs of possible cyber bullying, drug use, violent behavior and suicide threats. The firm will monitor and report on 14,000 middle and high school students’ posts on Twitter, Facebook, and other social media for one year.
Though critics liken the monitoring to government stalking, school officials and their contractor say that the purpose is actually student safety.
In Spring of last year, the district paid Geo Listening, $5,000 to conduct a pilot monitoring of 9,000 students . According to Geo Listening, this led to a successful intervention with a student “who was speaking of ending his life” on his social media. According the news reports, that intervention was significant because two students in the district had committed suicide in the past two years. The suicides occurred at a time when California had reduced mental-health services in schools.
No student has yet to be disciplined due to the monitoring, but it’s not out of the question if analysts find a message warranting action, such as a threat of a campus shooting, Glendale’s Superintendent Richard Sheehan said, when announcing the program.
Geo Listening will trawl the Web for social-media postings of Glendale students aged 13 and up. Thirteen is the age at which parental consent isn’t required under federal law for the school’s monitoring—and send a daily report to principals cataloging students’ posts that raise red flags. The company will also monitor and report on whether students are talking about drug use, skipping class, using their phone during class time or are involved in violent behavior.
The company has not shared publicly the methods and practices that are employed in gathering the students’ messages, but it has revealed that it does use key words in its searches. It also didn’t disclose how it determines that teens are, in fact, enrolled in a Glendale school.
But the company has publicized its ability to read and understand the special slang that teens use on social media. Hate, for example, could be spelled “h8.” In another example, Frydrych’s firm learned how youths inhale drugs such as liquid hashish through vaporizers, or “vapes,” which are devices like smokeless electronic cigarettes. Teachers may not be aware that a student is inhaling hashish in class, because of the lack of smoke.
The Privacy Issues That Geo Listening’s Use in Schools Raises
Why would Glendale want to eavesdrop and peek at student communications in the first place? The answer is that students are now using their phones and laptops as their primary means of communication. In an earlier era, students might simply talk in class, or in the hallways, but today, they may be texting their friends while sitting at their desks and ignoring the lesson. So now, a teacher or principal won’t necessarily overhear students talking or gossiping, which can be done silently and online, meaning that schools may not know such activities are going on in their classrooms. Yet today’s schools still want to be able to figure out what potential trends kids are up to, but may be invisible to teachers and administrators. Threats of harm have become virtual threats, and bullying may involve virtual bullying.
This is not to say that the new Geo Listening plan does not raise concerns. While some parents are likely to applaud the move as a way of keeping their kids safe, it still seems creepy to think of an army of computer experts who are paid to stalk students on a daily basis. Some parents may be worried that their kids will end up being disciplined for silly remarks made off campus and in haste.
Another possible worry is that a school district may become privy to events that a student does not want school administrators to see. From a teen’s perspective, it could cause further humiliation or embarrassment to know that a principal (and the private firm) now know about some painful event in his or her life. For this very reason, the affirmative and directed snooping on students outside of school might well cross a line. Even though students’ postings may be public—the idea that a student might be constantly monitored by a security expert that was hired by the school turns the program into one that is more like surveillance than it is like a teacher’s or principal’s randomly coming across an offensive email—or having one student turn another student in for misbehaving.
Of course, parents can always ask their kids for access to their accounts and become their Facebook friends. And teens can always alter privacy settings to lock down their accounts—but they can’t lock down the accounts of their friends—who may retweet, and report any number of messages or photos that a student wants to hide.
Beyond the question whether the actual snooping is legal, the school district needs to be more explicit and transparent about what will happen to negative information that is found and collected via Geo Listening. If the school district gets a report including sensitive data, will that data be retained indefinitely? Will it become part of a student’s file? Will the school district routinely turn such information over to law enforcement? How will the school district (and the company conducting the searches) ensure that they have matched the correct student to the postings or photos that they locate. Thus, as this program rolls out, the school district needs to carefully articulate what it will, and will not, do with the information it collects. After all, it will have a lot of potential dirt to dish, if it chooses to do so. And how such information impacts how teachers and counselors view students in their ongoing interactions may give parents lots of concern. Will John or Jane be treated differently if their student file contains lots of evidence of unruly posts?
Will the School District Be Able to Discipline Students Based on Its Snooping?
Brendan Hamme, an attorney with the Southern California branch of the American Civil Liberties Union, said that the Glendale School District walks a fine line with its social-media surveillance. The program is “sweeping and far afield of what is necessary to ensure student safety,” he said.
Daily reports from Geo Listening to school administrators include saved screen shots of the flagged posts, along with details as to whether they were made on or off campus; the time and date when they occurred; the user’s name, if available; and a description of why the post was flagged, according to CEO Frydrych.
It’s up to administrators to decide whether or not to act and, so far, no students have been disciplined because of a post that was discovered under the pilot program.
The District may be wise to be more deliberate in articulating how posts will be reviewed and, what may give rise to disciplinary action. Will a principal get angry when he sees himself ridiculed, and thus take action against a student? Likely not—but students will likely fear reprisal despite the fact that off campus (as well as on campus), they do have First Amendment protections for their speech and conduct.
Glendale Superintendent Sheehan said students won’t be disciplined for commonplace criticism. “As far as anything said about teachers, as long as it’s appropriate, it will be ignored,” he said.
Can schools discipline students for their offline posts? The current legal landscape is all over the map. If a student posts something about her school when at home is she doing so as a student or as a kid and citizen? When does the school have authority to discipline her?
The U.S. Supreme Court addressed student speech more than 40 years ago in Tinker v. Des Moines Independent Community School District (1969). In Tinker, which is still treated by courts as the seminal case on student speech, the Court declared that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” but nonetheless held that schools’ restrictions of student speech may be acceptable to the extent necessary to “avoid material and substantial interference with schoolwork or discipline.”
In the wake of several recent high-profile suicides, a growing number of states have enacted or toughened laws aimed at preventing cyberbullying. New cyberbullying legislation often updates antiquated stalking and harassment laws to encompass online threats and intimidation. At their core, these laws deal with penalties for criminal conduct. Many types of behavior that have fallen under the rubric of “cyberbullying,”—from cyberstalking, to sharing lewd pictures of minors, even rape scenes, are crimes that receive no First Amendment protection.
But what about conduct that falls short of threats or bullying? Appellate decisions involving public schools have reversed disciplinary actions that were taken against students, on the ground that the students’ online posts, while offensive, still deserved First Amendment protections.
In Layshock v. Hermitage School District the U.S. Court of Appeals for the Third Circuit. In Layshock, the court overturned a high school senior’s suspension. The senior ha been disciplined for creating several fake profiles for his principal on MySpace, all of which contained “unflattering” content. Although the student showed the profiles to a few other students while in school, he created them at home. According to the Third Circuit, the school district could not show that the senior’s actions, while rude, disrupted the school in any meaningful way, and the court “reject[ed] out of hand any suggestion that schools can police students’ out-of-school speech by patrolling the public discourse.”
The student plaintiff in J.S. v. Blue Mountain School District, a middle schooler, was also suspended for creating a fake MySpace profile for her principal with “sexually explicit content.” No student viewed the profile while in school since access to the site was blocked. The Third Circuit found once again found the content disturbing but not substantially or materially disruptive. The only “disruption” it caused in class was a teacher yelling at students to stop talking about it—when even the teacher admitted that chattering in class was hardly an uncommon occurrence. Hence, the suspension was not warranted under Tinker.
Of course, different federal courts will draw different lines when analyzing whether a student’s off campus posts qualify for discipline, and are not protected speech. The “material and substantial disruption” principle of Tinker applies nationwide, but how courts will apply it is anything but certain. And this leads us back to Glendale. There, with active real-time monitoring of high school students—more disciplinary actions may arise, leading students to challenge the use of such monitoring to discipline them. Alternatively, school districts can use the tool now used by the Glendale School District solely to prevent harm and not as a virtual Panopticon, which would be very disturbing to say the least. For the time being, parents and students will have to watch the Glendale experiment and brace themselves for when Geo Listening comes to town.