States Take Steps to Limit School Surveillance of Student Social Media Pages

Written by Alex Bradshaw

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It’s no secret that schools across the country regularly monitor students’ social media pages. In Florida and California, for example, school districts hire “social media listening” services to monitor students’ pages for threats of violence. The New Jersey department of education has used social media monitoring to flag violations of state Common Core testing rules. A law just went into effect in Illinois that actually gives schools the right to demand login credentials to a student’s social media account.

Federal student privacy laws do not address social media surveillance, and few state laws prevent schools from accessing content students post on social media pages that are not private (such as a public Twitter feed). However, states have proposed laws that prohibit schools from compelling students to allow access to or provide login credentials for their private social media accounts. Alaska, DC, Missouri, Minnesota, and North Carolina recently introduced such bills. These proposed laws are modeled after draft legislation released last week as part of the ACLU’s #TakeCTRL campaign. Additionally, Wyoming introduced a similar bill in October.

While bullying, harassment, and gun violence are very real threats in American schools, invasions of students’ privacy on social media is not the cure-all.

It’s good to see states limiting third party access to students’ social media accounts in this manner. While bullying, harassment, and gun violence are very real threats in American schools, invasions of students’ privacy on social media is not the cure-all – or even a partial remedy, for that matter – to these threats. There’s little evidence of increased social media surveillance leading to a reduction in school violence.  Though social media pages may occasionally reveal risks to a student or school community, false positives are likely common. Imagine the occasions when a teen’s online joke to their friend that they’d “die” or “kill” for something triggers surveillance technology to erroneously report the student to school or local authorities. Monitoring social media for signs of student rule-breaking could cause similar mistakes. In New Jersey, for instance, a student was reportedly suspended after a company conducting social media surveillance for the department of education incorrectly reported that the student tweeted a picture of the state’s Common Core test.

In addition to the risk of false accusations or, even worse, false convictions, the chilling impact this surveillance would have on student speech and behavior is undeniable. 92% of teens report going online daily, including 24% who say they’re online “almost constantly.” Students will be less likely to freely use social media once they learn their school is watching them on the platform or can force them to surrender their account login information. The social costs of this surveillance outweigh the purported benefits.

Laws and policies should also address what happens with student information after the account is accessed.

School surveillance of students’ social media accounts is not just about access to the account itself. Laws and policies should also address what happens with student information after the account is accessed. A host of concerns are raised when we consider how schools actually use students’ social media information post-collection. A little over a year ago we saw reports of school districts in Alabama shelling out six figures to former FBI agents to surveil students’ social media pages. The surveillance led to 14 expulsions, 12 of which were of black students. There could be a similar disparate impact on Muslim students soon in the UK, where the education secretary recently ordered schools to filter students’ online traffic and monitor social media pages to “prevent radicalization”. As the White House 2014 Big Data report suggested, these surveillance technologies and the underlying algorithms may “have discriminatory effects, even in the absence of discriminatory intent, and could further subject already disadvantaged groups to less favorable treatment.”

In addition to racial, ethnic, or religious profiling by the school, there’s no telling what could happen to students outside the school setting if information from social media monitoring ends up in their educational record. FERPA allows schools to share information from a student’s educational record with school officials, which could include off-duty local police officers or third party contractors. Additionally, when schools have determined that circumstances threaten the “health or safety” of the school, administrators have broad discretion to share information from educational records with law enforcement, whether or not the officer is employed by the school. This could have a devastating impact on a student pegged by the school or law enforcement as “a problem child” or “at-risk”.

If we cannot prevent schools’ unchecked access to students’ social media accounts in the first place, laws and policies should require schools to narrowly specify the purpose of social media data collection and offer students and parents the right to access and correct this data when FERPA wouldn’t already provide such rights. These laws should also limit sharing social media data with third parties, address how long this data may be retained, and include data deletion requirements. ACLU’s model legislation incorporates many of these standards. The model bill includes an effective provision on deletion of social media login credentials inadvertently obtained by a school. It also has provisions limiting schools’ ability to request or require access to a student’s social media account. The model bill allows schools to require a student to share specific social media content, but in limited circumstances—such as when the school is investigating unlawful harassment of a student by the student whose social media content has been requested.

Hopefully more states will propose legislation that includes these types of data use and retention limitations, as well as provisions on parent and student access and correction rights. School surveillance of students won’t end anytime soon – if anything it will become more pervasive. Our legal and policy response should address all stages (collection, use, retention etc.) at which individuals’ privacy could be threatened by this practice, and give students and parents meaningful control over how this data is used.

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