Facing the real threats of bullying, harassment, and gun-violence in American schools, school districts have sought solutions that will keep students safer. In the fight to protect students in school, many school districts have turned their attention beyond the school building: to student social media accounts.

School districts in California and Florida have hired “social media listening services.”  These “listening services” market their product as an opportunity to bridge a “digital-age communications chasm” by  allowing parents and school administrators to “listen in” on student conversation taking place in the digital realm.  As one Orange County, FL school board member explained, the listening service his district contracts with culls through posts by thousands of students searching for  “key words that could present threats, for example ‘gun’ or ‘attack’ or ‘kill’ or words of that nature.” The services alert school administrators if a student’s post gives rise to concern that the student will harm himself or others; ideally giving school administrators information they need to deal with a potential problem before any students are harmed. Geo Listening, the service used by the Glendale, CA school district, boasts that their service has saved lives by prompting successful interventions after high school students posted suicidal messages on their social media accounts. However, the efficacy of the services remains questioned by opponents of the surveillance policies.

Although the social media monitoring services used in Glendale, CA and Orange County, FL access only public posts published by students online, not all surveillance in the name of student safety has been so limited. A newly passed Illinois law makes bullying (whether perpetuated online or in person) a violation of school code, even if the bullying happens off-campus and during out-of-school hours. The law states that schools shall put in place a procedure for investigating allegations of cyberbullying, and letters sent home with schoolchildren shortly after the law was passed notified parents that “If your child has an account on a social networking website, e.g., Facebook, Instagram, Twitter, ask.fm, etc., please be aware that State law requires school authorities to notify you that your child may be asked to provide his or her password for these accounts to school officials in certain circumstances.”

However, despite the admirable articulated goal of student safety, these social media surveillance programs have attracted extensive concern over their impact on student privacy interests.

Although the “listening services” provided by companies like Geo Listening assert they do not violate student privacy because they only monitor publicly published social media posts, such services have been subject to criticism on two primary counts. First, the practice has been criticized for the way in which the programs extend the reach of the school (a government actor) beyond the traditional time-and-place confines of school authority and into the lives of American school children.  As Lee Tien of Electronic Frontier Foundation (a non-profit that advocates for privacy, free speech, and consumer rights) argues, “People say that’s not private: It’s public on Facebook. I say that’s just semantics. The question is what is the school doing? It’s not stumbling into students — like a teacher running across a student on the street. This is the school sending someone to watch them.” Further, the practice has been criticized from the perspective of concern over what impact data-collection from the surveillance may have on students. This concern is heightened by the potential for a school to include information from social media surveillance in a student’s educational file, a file that follows a student during his or her educational career and which may be shared with school officials and law enforcement (subject to a few limitations imposed by FERPA and similar legislation).  In light of these concerns, Alex Bradshaw of the Center for Democracy and Technology advocates implementing laws and polices that specifically address limits on school disclosure and retention of information gained from student social media pages.

Critiques of the Illinois law allowing a school to require a student suspected of cyberbullying to submit their log-in information to school administrators echo similar concerns, heightned by the law’s reach to both public and “private” social media activity. Kade Crockford, director of the Massachusetts ACLU has called the Illinois law “a tragic example of government overreach—the notion that there’s a substantial difference between cyberbullying and regular bullying is confusing [. . . ] Anytime a school is trying to control students’ behavior outside school, it’s a serious threat to their privacy and to their futures.” Crockford also articulated concerns that “kids of color, poor kids, kids with intellectual and learning disabilities” would be the kids most likely to be targeted for additional surveillance under the Illinois system.

The debate over the surveillance policies highlights a growing tension in our conception of privacy:  in a world where speech and personal information is increasingly disseminated on publicly available channels, does an individual retain any privacy interest in his or her published social media activity? Further, are there any limits that exist on government attention to and retention of that information once it has been shared?

Notably, seven states (AK, AL, CT, MN, MO, NC, NE) and DC have recently introduced legislation that would self-impose limits on the authority of schools to surveil student social media. As school surveillance of student social media activity increases, I suspect that political pressure from concerned students and parents will lead to further proliferation of laws and policies placing affirmative limits on the authority of schools to monitor the digital off-campus lives of their students.

Rachel Conry

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