UVA Professor: Constant Tracking of Public School Students Online Is Unwarranted

September 14, 2023 By Melissa Castro Wyatt, mwyatt@law.virginia.edu Melissa Castro Wyatt, mwyatt@law.virginia.edu

For 24 hours a day, seven days a week, American public-school students are being watched and tracked online, according to a new law review article by Danielle K. Citron, a University of Virginia School of Law professor who writes and teaches about privacy, free expression and civil rights.

Teachers, administrators and school resource offices have the tools to watch - in real time - students’ searches, emails, chats, photos, calendar invites, geolocation and more, according to Citron’s research. Private companies are facilitating this continuous and indiscriminate surveillance by scanning, tracking and analyzing the most intimate aspects of young people’s lives - their online activities.

Her forthcoming article, “Under Their Eye: The Surveilled Student,” analyzes the costs and benefits of this surveillance, identifies the underlying legal issues and recommends solutions. Citron is the Jefferson Scholars Foundation Schenck Distinguished Professor in Law and the Caddell and Chapman Professor of Law at UVA. She is the co-director of the Law School’s LawTech Center and vice president of the Cyber Civil Rights Initiative, a nonprofit devoted to fighting for civil rights and liberties in the digital age.

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Q. Why is student privacy an issue?

A. Young people need intimate privacy when they’re in the process of forming their identities, which is their full-time job. Every day, young people are searching, chatting, texting, emailing, browsing, reading, and sharing on their laptops. They are using school-provided laptops to research a paper, search for information about reproductive health and research information about their sexual identity. Their thinking and innermost thoughts are expressed and recorded in their online activities. Digital technologies can be indispensable to students’ self-development. Online tools can enable self-exploration, enhance the sense of human dignity, and facilitate close relationships. They can, yes, but those wonderful possibilities are not guaranteed. For students, all of those possibilities are in jeopardy.

Students are now under continuous surveillance by public schools and companies in ways that adults would reject. In 2013, U.S. adults made clear that they don’t want even a small semblance of this when they rejected the continuous and indiscriminate monitoring of telephone data that was then provided to government.

Q. Why monitor children’s internet activity on school-provided laptops?

A. Public school districts think federal law requires them to monitor their students, which is a misunderstanding of the federal Children’s Internet Protection Act. CIPA was passed in 2000, when students had access to school computers only when they were physically at school, whether in computer labs or classrooms. The idea was that we didn’t want students to be in the computer room looking at porn, so schools had to block porn to receive a federal discount for internet access. That’s literally what Congress was thinking about. But schools are effectively saying, “Because we have to block porn, it requires us to see, block and, crucially, monitor everything students do with laptops,” even though students use these laptops at home, on weekends, and during the summer and holidays. So, students are being monitored by schools every second of every day. This is happening even though CIPA has a clear disclaimer that continuous tracking of students online is not required.

Q. Why are schools ignoring the disclaimer?

A. Schools ignore that disclaimer in the name of protecting students from self-harm, bullying and threats. They are not just blocking pornography and other visual obscenity, as the law requires, but they are spending public funds on contracts with private companies that scan and analyze students’ online activities. Those private companies rely on software to alert them about concerning material. Their content moderators - who are not well-trained - have seconds to review the flagged material, which they then forward to school administrators and other officials. Those alerts usually are flagged after school hours and on weekends, so law enforcement officers are the ones who are contacted.

Q. What has been Congress’ reaction to this?

A. The Federal Communications Commission, which has enforcement power over these issues, has been silent on this activity, even though advocates have brought the issue to their attention. Given the FCC’s inaction, schools continue to get federal discounts on internet access and to proceed with the over-surveillance of children. Senators Elizabeth Warren, Richard Blumenthal and Edward Markey spearheaded a congressional inquiry in 2021 into the private-public surveillance of students, and they made clear in their report that this is far beyond what federal law requires and they’re worried, as I am, that the surveillance chills students’ free expression and worse endangers students, especially nonwhite students who end up facing discipline for minor infractions. They were very clear that this pervasive student surveillance was bad for students, bad for their privacy, not great for safety and unclear as to efficacy.

Q. Do schools have an incentive to go further than just blocking pornography, as the law requires?

A. School administrators say that the monitoring makes teachers feel safer and better informed to help prevent student self-harm, suicide and threats. I believe them. School administrators and teachers are genuinely concerned about the safety and well-being of their students. But I think schools have to look at the surveillance in a clear-eyed manner. They need to work on understanding the risks to privacy and whether these surveillance tools are effective at all, or instead if they are making students less safe. They need to consider how they can best balance addressing safety concerns while protecting privacy. This article is just a first step to say, “Hey, we don’t even know if these tools work, because they don’t let us inside the systems to do the efficacy analysis.”

Q. Why aren’t we allowed to see what the companies are collecting?

A. These are private companies being granted access to all student data and then shielded from liability because they’re acting on behalf of government, which is frankly bonkers. Because they’re private entities, they don’t have to respond to records requests, as government agencies do. These companies are getting quite a bit of private funding because investors think they’re going to make money when they get bought or go public. These companies may be bought by Google or Amazon or Microsoft. We should worry about that - the end goal of the dominant tech companies. My concern grows out of conversations with chief privacy officers who have said in public that the goal is to own all personal data and provide all the services of our lives, including health care. I’m not saying anything that’s confidential; these goals are part of the public record, so to speak.

Danielle K. Citron among students

Danielle K. Citron is a University of Virginia School of Law professor who writes and teaches about privacy, free expression, and civil rights. (Photo by Julia Davis, UVA School of Law)

Q. Is this the trade-off for school safety?

A. This is big business, and the biggest losers are students. I’d love the promise of safety to be fulfilled. Less bullying, less sextortion and child pornography, all the ways we could protect children at school. Right now, privacy and safety are viewed as incompatible. But it’s not a zero-sum game - we can protect students’ intimate privacy and endeavor to protect their safety. But right now, we’re not doing this meaningful calculus at all and right now, I think students are less safe. Children are more often being disciplined for minor infractions like cursing than for [true] threats. This is often left to the discretion of school resource officers, and we find that Black students are disciplined more often in these cases.

Q. What impact do you hope your article will have?

A. A modest reform would be reworking CIPA’s monitoring provision, so schools understand they are not required to track students online to obtain federal funding. But they should go further and regulate monitoring so that schools can qualify for the discount only if their surveillance technologies are independently shown to be effective and to minimize harm to privacy, expression and equality. And the details of the contracting process and the terms of contracts should be out in the open.

Q. What are parents’ attitudes toward this?

A. Some are not fully informed of what’s going on and how it’s not actually making students safer. And then there are parents who do not like this at all. But schools are the deciders and they want students to use school-provided laptops to do their work, while protecting their in-school networks from viruses and other malware. The question is whether those laptops should be equipped with monitoring software in the way that such monitoring is currently conceived. That is what I am interrogating.

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