By Samantha Vicent
Student Press Law Center
Originally published in SPLC Report, Winter 2014 Issue
At the start of the 2013 school year, students at Hoover High School in California’s Glendale Unified School District were surprised to discover their school district had been paying GeoListening, a social media monitoring company, to keep tabs on their online activity for more than a year without their knowledge.
GeoListening isn’t the only company being paid to keep track of students’ online activity, however. Increasingly, schools and districts are turning to third parties for help monitoring students’ public social media posts. Monitoring, administrators say, can help schools intervene when students post about issues like self-harm, suicide and bullying.
The practice though, has cyberbullying researchers and First Amendment experts around the country concerned, saying such services, while well-intentioned, could bring about unnecessary and unconstitutional restrictions on students’ freedom of speech. Experts also say because these companies are only a few years old, it’s too soon to tell whether monitoring students’ online activity has effectively resolved or prevented instances of cyberbullying or violence.
Furthermore, constant monitoring, even when students are out of school, could stand in direct contradiction to state statutes, and two states — Illinois and Michigan — already have laws on the books prohibiting school districts from tracking the online behavior of K-12 students.
Bullying concerns spark monitoring
When Glendale’s program became public, the school district cited concerns about student safety.
“We think it’s been working very well,” Superintendent Richard Sheehan told The Los Angeles Times. (Sheehan declined to comment for this story, instead referring reporters to the Times story.) “It’s designed around student safety and making sure kids are protected.”
Chris Frydrych, GeoListening’s founder, said school districts don’t have adequate staff or time to properly identify issues on the Internet, which impairs their ability to prevent conflicts between students, he said.
His company sends a daily report to schools flagging potentially harmful or controversial posts. That helps administrators “triage” posts, Frydrych said.
Bruce Canal, a retired Indiana State Police officer, said he created Social Net Watcher, a GeoListening-like company, in 2010 after realizing the dangers involved with teenagers’ use of social media. The company maintains a database with “hundreds” of phrases and key words, which relate to such topics as bullying, suicide and violence, he said.
Social Net Watcher works with two dozen schools in five states — Florida, Indiana, New York, Ohio and Tennessee. Both Canal and Frydrych cited an increase in bullying, particularly cyberbullying, as reason their clients chose to monitor students’ social media use.
Canal described a recent suicide at an Indiana high school, where a female student killed herself following repeated incidents of online bullying by her classmates. Her story is only one of many that could have been prevented with active social media monitoring at school, Canal said.
“If teachers had advance knowledge of these situations, none of them would have happened,” he said. “In all these events, if they would have had our program, districts would have had advanced intelligence of this and could have probably saved some lives.”
Cyberbullying was what prompted Missouri’s Columbia Public Schools system to begin monitoring student posts, spokeswoman Michelle Baumstark said. Several years ago, the district hired Illinois-based Meltwater, which like Social Net Watcher searches postings for different keywords ranging from discussions about schools and administrators to offensive language and signs of bullying.
“We use that in conjunction with working on our cybercrimes unit with the sheriff’s department,” Baumstark said. “We also rely on our students to report things. We really focus on the power of the bystander and we try to educate people because we can’t be there all the time.”
Columbia Public Schools has used Meltwater’s services for three years, and Baumstark said she receives an email three times per day with links to stories, posts and other online mentions matching the district’s selected keywords.
The school system has had only two severe instances of cyberbullying since contracting with Meltwater, but both of those required notifying law enforcement, Baumstark said.
Monitoring is most prevalent at “one-to-one” schools that provide a computer or tablet computer to each student, principals at those schools say. Many schools require students to sign an acceptable use policy before getting a device and opt to install tracking software that allows administrators to monitor online activity by students.
Most schools’ monitoring looks for more than just instances of bullying, however. Often schools have extensive lists of keywords and websites they track. Some, like the Columbia school system, also look for posts that reflect poorly on the district. Baumstark said it’s “extremely important” to know at all times what staff and students are saying online, as they are a reflection of the district.
Administrators at Garrett High School in Indiana use a tracking service called Lightspeed, which looks for about 1,000 red flag words students have used while logged into school-issued devices, said school principal Matt Smith. However, the school does not actively monitor students’ social media accounts, he said.
“We don’t track Twitter or Facebook,” he said. “(Lightspeed) is a suspicious search filter that flags searches or posts for health issues like pregnancy … we’ve actually been able to help some young ladies.”
Like Baumstark, Smith receives an email each morning with information about students’ suspicious searches on school computers the day before. Discipline is uncommon, but students can be held accountable for posts made off-campus with the computers, he said.
“If (suspicious activity) is on the school’s device, it doesn’t matter,” Smith said. “LightSpeed works on the computer even when it’s off-campus.”
In Massachusetts, Burlington Public Schools Superintendent Patrick Larkin said the district uses software installed on school-issued electronics to see what students are doing both on and off-campus.
Larkin said the district monitors the use of school-related hashtags as well as checks students’ Internet use when they log in and out of their school-issued electronics. Burlington hasn’t had major issues with cyberbullying or inappropriate Internet use, he said.
“We’re not overly invasive about how we monitor the kids,” Larkin said. “As expected, we have 1,000 high school kids that every now and then will try to get to a (prohibited) site, like pornography.”
On- or off-campus violations of the district’s acceptable use policy can lead to sanctions for students, Larkin said. Rather than disciplining students, though, administrators usually talk to students about their Internet habits and explain what is inappropriate, he said.
“I’ve seen some tweets on weekends where kids are watching sports events and using profanity because, for example, the Patriots are playing poorly,” he said. “But I tell them if I’m a college admissions person and I Google your name and Twitter, that’s what I would see.”
Baumstark said her district handles disciplinary situations similarly. The district tries to respect students’ First Amendment rights, she said, but noted that certain profane posts can be flagged “if there is an intent to hurt or harm” within them. A student’s location when they post does not exempt them from responsibility for their statements, she said.
“There is a difference between using your voice and bullying someone, and our definitions and policies are very specific,” Baumstark said. “We take threats very seriously. We expect our students to be responsible and good citizens, whether you’re on our campus or not.”
While schools are right to be concerned about cyberbullying, some argue it’s unnecessary for districts to go as far as signing contracts with third-party monitoring companies, as many students and teachers have historically self-reported problems they’ve seen online. Justin Patchin, co-director of the Cyberbullying Research Center, said the issues with social media monitoring lie more with administrators’ responses to their findings than with the data collection itself, as long as that collection looks only at public activity.
“The most important thing is how parents or schools work together to respond to the information that’s been gathered,” he said. “The question really becomes ‘How does the school respond?’ Some schools have gotten in trouble with responding too harshly, and others have gotten in trouble for not doing anything.”
Legally, the rules aren’t clear about schools’ limits in tracking students’ online activity. The issue of whether schools can punish students for off-campus speech is also somewhat ambiguous.
When schools handle reports of off-campus bullying, however, Peter Scheer, executive director of the First Amendment Center, says schools should be careful. Districts should only step in if there is a substantial disruption to a student’s ability to attend school, Scheer said, and Patchin said administrators should follow the standards set in court decisions such as in 1969’s Tinker v. Des Moines Independent Community School District case when doing so.
“That’s (Tinker) pretty clear,” Patchin said. “Whatever is being said online or off, if it results in a substantial disruption on campus, then it’s fair game in terms of an educational sanction.”
But the courts have disagreed about whether the Tinker standard should apply to speech on social media made off-campus, said Frank LoMonte, Student Press Law Center executive director. Tinker addressed speech made in-person during school hours only, and students have proper reason to believe Tinker does not provide them enough protection for online, off-campus posts, he said.
“That’s much, much different from speech that a viewer has to seek out on Facebook or Twitter,” LoMonte said. “If something bothers you on Facebook, you can just click away. So there has to be a higher degree of protection when you’re speaking as a citizen on your own time than when you’re speaking in the confines of a school.”
In 2011, the 3rd U.S. Circuit Court of Appeals ruled that public school students cannot be punished for off-campus speech that fails to cause substantial disruption to on-campus activities. In the cases — Layshock v. Hermitage School District and J.S. v. Blue Mountain School District — two students sued after they were suspended for creating fake MySpace profiles mocking their respective principals.
However, the Third Circuit declined to decide whether the Tinker standard applied in the case, with Chief Judge Theodore McKee writing in his opinion that the court “need not now define the precise parameters of when the arm of authority can reach beyond the schoolhouse gate.”
Still, school discipline for online posts should be administrators’ last resort, Scheer said. Students in K-12 schools are still learning proper social media etiquette, and administrators should remember that when deciding how to handle inappropriate activity, he said.
“We’re not talking about fully-formed adults,” he said. “We’re talking about kids in middle school or high school. There’s a difference between observing and intervening in a hopefully helpful way, versus on the other hand seeing something they don’t like and taking adverse action against the student. Certainly in the First Amendment context, we’re worried about adverse action that would censor students.”
Canal and Frydrych both said they feel the public misunderstands their business models and refute claims of being secretive. Neither of their companies can see students’ private social media posts, they said, and both maintain they have no intention of taking away or reducing students’ rights.
“People want to throw GeoListening into the NSA realm, but we look at things only in the public domain,” Frydrych said. “We don’t have anything to do with free speech. It’s the school’s interpretation of what we report that is going to apply what the student says not only up against the Constitution, but what is in their student code of conduct. The issue we’ve helped raise to the public is if students sign a code of conduct that says ‘You will respect everyone in the school community,’ you’re giving up a little bit of your free speech aren’t you?”
Canal said schools need to continuously keep up and adapt to students’ methods of communication, and social media monitoring is the most efficient way for schools to do so.
“Everybody’s getting data,” he said. “They (kids) understand this. So we know that in a matter of years there will be a lot more schools on the program because it (social media) is just the way kids communicate nowadays.”
The public nature of social media could cause unintended ramifications for students if not used correctly, which makes monitoring both educational and necessary, Frydrych said.
“We feel like students deserve the right to understand the consequences,” he said. “We’re trying to create thinking before posting, but that’s not intended to limit free speech. We’re just saying, ‘Be careful.’”