[LM_NET] Monitoring Internet use -- and use of personal digital devices

[Nancy Willard <nwillard@CSRIU.ORG>]

Hi all,

I was quoted in an article today about monitoring of student Internet use. I
have long thought that monitoring is a preferable approach to filtering.
Here is the story:
http://www.stltoday.com/stltoday/news/stories.nsf/education/story/32F29B1D5A
C13EDF862572340018D139?OpenDocument

Marc Rotenburg, from EFF, thinks there are Fourth Amendment (search and
seizure) problems with monitoring. Here is why he is wrong.

Internet access is provided in schools to support student learning. These
systems are not public access systems. As such, all student online activity
should be in furtherance of an educational objective -- thus not personal,
and therefore no expectation of privacy.

The legal standard for search and seizure in schools is best known as the
"locker search standard." Essentially, schools have the right to routinely
conduct broad-based searches of lockers and have the right to conduct
individualized searches when school officials have a reasonable suspicion
that a student has violated a policy or the law.

Monitoring of student Internet use functions well within this standard:
Routine monitoring of all use, with individualized searches if there is a
reasonable suspicion that misuse has occurred is totally justified.

Notice of monitoring is really important because notice of monitoring
enhances the deterrent effect. Also, as evidenced in the article, once
students have a good idea that inappropriate use will be detected and result
in punishment, they tend to not take the risks of getting caught.

I do recommend that schools establish a specific web page with links to
health related sites, including sites addressing intimate sexual issues in a
manner that is deemed appropriate within your community, and that student
access of these sites be considered private and not subject to review -- how
this is handled technically may be a challenge.

I strongly advise that all school districts reassess how they are managing
student Internet use to address Web 2.0 challenges. My perception is that
you are all going to conclude that better monitoring is essential -- just
like the district in the story has decided. Reliance on filtering is simply
insufficient protection (in addition to all of the other problems with
filters). 

All of this is pretty straight forward when schools are dealing with
school-based Internet systems.

However, there are some major problems looming in relationship to the
personal digital devices, including cell phones and PDAs that students are
using to an increasing degree in school. Recognize that while schools may
legitimately tell students that they can't use cell phones in class,
students are likely to claim to have a legitimate right to use PDAs in the
classroom for educational purposes. My 4th grade son is using a Palm in
school right now for writing. He will expect to have the right to use his
own device in class for note taking and writing as he progresses through
school. And these systems will function totally outside of the district's
Internet system. Kiss your reliance on filtering behind.

There was a recent federal court ruling on issues related to school review
of the electronic records stored on these devices. Klump v. Nazareth Area
Sch. Dist., 425 F. Supp. 2d 622 (E.D. Pa. 2006) You can find the ruling by
searching on the case name. The school officials in this case did not handle
the situation appropriately. The district policy was that cell phones must
be kept out of sight during the school day -- a typical policy. The student
accidentally dropped his cell phone and the teacher confiscated it. Then the
principal reviewed the electronic records, called some of the numbers, and
text messaged with the student's brother without identifying themselves.

The ruling was based on a motion to dismiss -- which is a court proceeding
that occurs really early in the litigation process, before any evidence is
gathered. I have seen no subsequent ruling and based on the court's first
ruling, I strongly suspect the district simply settled the case realizing it
was going to lose -- probably badly.

The court indicated that none of these activities were justified under the
search and seizure standard that I discussed above -- simply dropping a cell
phone does not provide reasonable suspicion for a search of this nature.

But the student also raised another claim -- that the search of the stored
electronic records was a violation of the state's wire-tapping laws. And the
court indicated that this claim was also valid.

Students may use personal digital devices on campus for a variety of totally
inappropriate reasons, including bullying or harassment, capturing and
sending inappropriate images, cheating, and drug dealing, as well as
inappropriate Internet use for entertainment purposes.

Under certain circumstances, it will be absolutely necessary for school
officials to have the ability to review the electronic records on these
devices. This includes in a classroom. If a student is using a PDA in a
classroom ostensibly for educational activities, the teacher must have the
ability to review the history records of how that PDA is  being used in
class. 

And if there are any reasonable suspicions of inappropriate or harmful use,
school officials absolutely must have the ability to review the electronic
records on such devices to determine whether such inappropriate or harmful
use has occurred. 

So far the best strategy my creative brain -- which has been dealing with
these kinds of issues for over a decade -- can think of is turning the
situation into a contractual matter. IF a student wants to have a personal
digital device on campus, the parents MUST sign an agreement that allows
teachers the right to regularly review the history of online activity if the
PDA is being used in the classroom and school officials the right -- upon
demonstration of just cause, a reasonable suspicion of misuse -- to review
the electronic records stored on the device. It is likely that there will
need to be some form of notice to parents and right to request a hearing
prior to conducting an individualized search, and the ability of school
officials to retain the device until such a hearing has been held. If a
student or his or her parents do not agree with these contractual
provisions, then the device simply should not be allowed on campus.

As far as I can tell, I am the first one who has recognized the implications
of this issue. I am not sure my solution is the correct one. I have been
known to change my mind upon learning new things and hearing different
arguments. 

I am working on a revision of my Cyberbullying and Cyberthreats book, which
will be published early 2007 by Research Press. I have outlined this issue
in the book -- along with other guidance on a comprehensive approach to
address cyberbullying and strategies to better address student Internet use
management. But I have indicated my preliminary analysis on the personal
digital device issue may change and updates on this issue will be on my
cyberbullying site.

The folks on these lists are my best conduit to school administrators. I
rarely specifically request that you forward my messages, but I do request
that you do so in this case. I am presenting to the NSBA Leadership Council
in January and will bring this matter to their attention then.

I thoroughly welcome your perceptions -- whether sent privately or publicly
on these discussion groups. Please understand that if you post a response to
one of the three groups I have sent this message to and I respond, I intend
to respond to all groups -- just to keep everyone in the loop. So please
indicate specifically if you do not want your message forwarded to other
groups. 

Nancy

-- 
Nancy Willard, M.S., J.D.
Center for Safe and Responsible Internet Use
http://csriu.org
http://cyberbully.org
nwillard@csriu.org

Cyberbullying and Cyberthreats: Responding to the Challenge of Online Social
Cruelty, Threats, and Distress, a resource for educators, is now available
online at http://cyberbully.org.

Cyber-Safe Kids, Cyber-Savvy Teens: Helping Young People Use the Internet
Safely and Responsibly. Jossey-Bass (forthcoming, March 2007)

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