The Surveilled Student. (Speech at Twenty-First Century Schools and Universities)

• Date: 01 July 2024
• Author: Citron, Danielle Keats
• Published date: 01 July 2024

Table of Contents
                Introduction
                I. The United States of Student Surveillance
                 A. Old-School Surveillance
                 B. New-School Surveillance
                 C. Parental and Student (Non)Consent
                II. Undermining Schools as Citizen Incubators
                 A. Harm to Learning
                 B. Harm to Privacy, Expression, and Trust
                 C. Harm to Equality
                 D. Are Students Safer
                III. A Plan for Reform
                 A. Law's Failure
                 B. First Step in Reform: Proof of Concept, Harm Minimization
                 and Stakeholder Involvement
                 C. Second Step: Duty of Nondiscrimination
                Conclusion
                

Introduction

Americans want, expect, and deserve privacy in their intimate lives. (1) In June 2013, numerous elected officials cried foul upon discovering that the NSA had been amassing the telephone metadata of millions of people living in the United States. (2) Americans understood that such bulk surveillance risked self- censorship and conformity to the detriment of democratic engagement. (3) Congress appreciated this risk, and with the USA FREEDOM Act of 2015, prohibited the federal government's indiscriminate and continuous collection of call detail records. (4)

Although some government surveillance, like the bulk collection of telephone records, has been met with pushback and congressional action, student surveillance has been embraced by school administrators. For many years, K-12 public schools have used video cameras to record students on campus and anonymous tip lines to receive complaints. (5) Now, public schools are engaged in more comprehensive surveillance. Surveillance software is installed on school-provided laptops, enabling teachers, school resource officers, and companies to monitor in real time students' searches, browsing sessions, emails, chats, photos, calendar invites, geolocations, and more. (6)

Monitoring software serves two central roles. The first is to block students' access to problematic content and to inform administrators about the flagged content that students tried to access. Along these lines, monitoring software can help teachers manage their classrooms, enabling teachers to see what students are viewing and, if necessary, close or switch students' tabs. (7) The second is to scan students' online activities (emails, chats, searches, browsing, files) for evidence of bullying, self-harm, and safety threats. (8) During the 20212022 school year, 95% of surveyed teachers reported that their schools or districts provided students with tablets and laptops; 89% reported that monitoring software was installed on school-issued and/or personal devices. (9) Separately, companies monitor students' social media activity to detect potential threats. (10) In thousands of public school districts, primary and secondary school students are being surveilled twenty-four hours a day, seven days a week, summers included. "[O]nce a school district buys [certain monitoring] services, students don't have a school-friendly alternative" for email and assignments. (11) In other words, students cannot opt out.

Everyone wants, expects, and deserves "intimate privacy"--the ability to set boundaries around our intimate lives and control the extent to which others have access to and information about our bodies, minds, health, sex, sexual orientation, gender identity, and close relationships. (12) Everyone needs intimate privacy to develop identities, freely express themselves, and forge close relationships, but this interest is especially important for children.

Children have an interest in what we can describe as student intimate privacy. One's youth is a time of enormous change. Students experience profound physical and emotional growth during their school years. (13) Adolescents undergo considerable physical and emotional change; they are continuously inventing and reinventing their identities and ideas. (14) Self- development is a student's full-time job; students spend their time learning, creating, exploring, thinking, speaking, and cultivating friendships. (15) Students are meant to be developing skills of free expression and civic engagement, and schools are meant to facilitate "educating the young for citizenship." (16)

Continuous online monitoring denies young people the space that they need to learn, think, and express themselves. Totalizing student surveillance is stifling and intimidating; it chills students from seeking out certain material because they fear embarrassment, disapproval, and discipline. (17) It narrows the aperture of students' online activities and deters them from seeking advice on issues central to their developing identities. (18) It makes them see themselves as problems or suspects whose online activities must be watched. (19) Without student intimate privacy, students cannot freely listen, learn, read, browse, search, speak, chat, and email.

Student surveillance is justified on the grounds that it will save student lives. (20) Companies claim that their monitoring algorithms can flag suicidal ideation, cyberbullying, and potential threats. (21) Their content moderators, they claim, can sift through thousands of alerts and notify school administrators and law enforcement about serious problems so they can intervene before the worst happens. (22)

No doubt, children's physical and emotional safety is of paramount value. Having studied the perils of online abuse for the past fifteen years, I know that the stakes for children are as high as life itself. When students face intimate privacy violations or harassment online, their mental anguish can be so severe that they take their own lives. (23) According to a 2023 study on LGBTQ+ students and school surveillance, a majority of survey participants personally experienced cyberbullying and recognized the benefits of monitoring for cyberbullying but worried about the privacy implications. (24)

If surveillance tools can help us detect destructive online abuse and minimize suffering, then we should assess how we might deploy those tools while safeguarding student intimate privacy. Student safety and intimate privacy need not be a zero-sum game; both can be secured with properly calibrated safeguards. If surveillance companies have the ability to prevent tragedies, then we should focus on how to secure student safety while protecting student intimate privacy.

Before considering how safety and student intimate privacy might be balanced, we first need proof that the claimed safety benefits of student surveillance are bona fide. Right now, no impartial evidence backs self-serving corporate claims. Companies supply anecdotal stories and tout the numbers of problems averted (in the hundreds of thousands), yet they provide no independent proof in support. (25) For instance, Gaggle claims to have flagged 1.4 million student safety incidents and saved an "estimated" 5,790 lives from 2018 to 2023. (26) But these numbers have not been subject to systematic, impartial evaluation. (27)

Computer scientists have called these claims into question. Renowned computer scientist Arvind Narayanan considers the notion that algorithms can predict at-risk kids or criminal activity "[f]undamentally dubious." (28) He does not mince words: Promoting surveillance software as capable of making such predictions is tantamount to peddling "snake oil." (29)

Schools have been purchasing surveillance tools without meaningful input from the public. (30) The contracting process is secret; many parents are not notified until after new technology has been implemented in the classroom or installed on students' devices. (31) Students, parents, and their elected officials must have the chance to evaluate, approve, and monitor surveillance programs. Students cannot opt out of the continuous monitoring. During school hours, they must connect their devices to the school's WiFi, which monitors the network traffic. After school hours, surveillance companies monitor everything students do with their school-issued laptops. (32) Thus, students whose families cannot afford personal devices cannot avoid the surveillance.

Student surveillance may make children less safe and less free. Studies have shown that student surveillance particularly imperils the well-being of poor students, rural students, disabled students, Black and Hispanic students, and LGBTQ+ students. (33) Rather than preventing shootings or suicides, the more common result from student surveillance is discipline for violations of school policy. (34) Black students disproportionately face suspension due to student surveillance. (35) LGBTQ+ students have been "outed" to teachers and parents, which exposes students to discriminatory treatment at school and physical and emotional abuse at home. (36) This is not protecting vulnerable students; it is endangering them.

This essay introduces student intimate privacy (37) as a value in the student surveillance debate. Part I documents the totalizing nature of student surveillance. Part II shows how the denial of student intimate privacy wreaks havoc on students' ability to explore, learn, and speak. Students censor what they say and do online because they do not want their activities to attract suspicion or discipline. (38) Surveillance is expressive: It tells students that schools see them as potential victims or suspects rather than as future voters and citizens. Students are inhibited from using digital tools to learn and listen, to speak and share, to explore and play, and to communicate freely.

Protecting student intimate privacy may require scaling back on student surveillance and securing crucial safeguards to minimize the harm to student intimate privacy and the expression that it enables. Part III turns to legal reforms that might help us protect student intimate privacy and safety--or at least strike a far better balance than exists now. We need legal reforms that introduce transparency, accountability, and safeguards to student surveillance. Schools should not use surveillance software unless companies can show that the tracking makes students safer and...