Exams are stressful even under the best of conditions. Exams taken virtually, as so many students over this previous year have found out, have presented a brand new set of challenges that can magnify student stress. But, imagine for a moment that you cannot even get into your exam, because the exam software does not recognize your face, or that the eye-movement tracking system built into the exam software could mean that looking away momentarily from your computer screen would result in you being flagged for cheating. This is, in fact, the reality that ample students have faced over the past year of virtual learning and testing. Indeed, when COVID-19 hit in early 2020, teachers and their students, from kindergarten to graduate school, had to quickly pivot to virtual learning and testing modalities. While this transition was certainly a necessity to keep students, their teachers, and their families safe, virtual learning and testing nonetheless raises civil liberties concerns around privacy and freedom of speech and perpetuates inequality for those who are people of color, low income, non-binary, or neurodivergent.
In the United States, unlike in other countries, there is no “national” privacy law. Rather, a patchwork of laws make up the privacy protections that people can count on. Pertinent to the COVID-19 crisis and the accompanying shift to virtual learning are three such laws: FERPA, COPPA, and HIPAA. FERPA, or the Family Educational Rights and Privacy Act, provides for both parents and eligible students “the right to inspect and review the education records of [the student]” as well as the ability to correct that information and consent to disclosure of personally identifiable information (“PII”) from that student’s records. COPPA, or the Children’s Online Privacy Protection Act, makes it unlawful for a website operator to knowingly collect personal information from anyone under the age of thirteen. Lastly, HIPAA, or the Health Insurance Portability and Accountability Act, sets national standards for the“privacy and security of individually identifiable health information.” Given this set of laws, it is easy to see how COVID-19 and the shift to virtual learning could complicate matters. Although virtual learning and testing likely do not actually contravene FERPA, COPPA, or HIPAA, the implications, privacy and otherwise, of virtual learning and testing remain complicated and vast.
Replacing traditional in-person learning with virtual classrooms presents one set of challenges to student privacy. For example, some school districts that loan computers out for virtual learning have been known to advise students that not only do they have no expectation of privacy, but that they also allow school officials authority to access these devices, including the camera and/or microphone, for any reason and without notice. This lack of privacy opens up a student’s home to immense scrutiny, which then raises concerns as to whether at-home conduct should be subject to at-school rules and regulations. For example, a number of students across the country have faced disciplinary action, and in at least one instance, even had the police called on them, for having on-screen what are obviously toy guns while being “inside” the virtual classroom—recognizing, of course, that many schools might take issue with such toys, and certainly the non-toy varietal, being physically brought onto school grounds. This begs the question of what other “traditional” classroom rules, like those around bathroom trips or visible toys, must students nonetheless follow within the confines—or, “privacy”—of their own homes.
The shift to virtual testing and exams, however, has created another set of challenges entirely, and affects students from elementary school up through students taking professional level exams, such as the Law School Admissions Test (“LSAT”) or the Bar Exam. Proctoring apps that are ostensibly used to preempt student cheating might record keystrokes, use facial recognition, gaze-monitor or eye-track, and record via a microphone and camera all of a student’s activities as well as collect personal identifying information like name and date of birth, IP address, and browser history. While it seems like this sort of software became a necessity during the COVID-19 pandemic, exam proctoring companies have actually been around for years. These companies market their products to colleges and universities by citing studies which estimate that “between 50 and 70 percent of college students will attempt some form of cheating,” a number likely to naturally skyrocket should students be “left unmonitored in their own homes.” Although some schools have opted against using such software, many are already using or considering use of surveillance or proctoring software of some kind in light of the pandemic.
Furthermore, virtual learning and testing can create a whole host of concerns surrounding the perpetuation of inequality for students already marginalized both inside and outside of the classroom. For example, surveillance mechanisms employed by schools can be especially problematic for students with darker skin tones or who are non-binary, as biometric surveillance is unfortunately notorious for having difficulties recognizing students who are nonwhite. Additionally, studies show that black, indigenous, and people of color (“BIPOC”) are less likely to have reliable internet connection during exams. Similarly, students from rural or low-income communities may have to compete with others for access to a computer, or get creative—such as completing work in parking lots—to have access to reliable internet. For students with dependents or students who are neurodivergent or have disabilities, actions like looking away or speaking to someone offscreen—all behaviors which can be deemed innocuous—might be flagged as suspicious by their proctoring software.
Moreover, student surveillance may raise freedom of speech concerns. Students who are being watched may be more likely to self-censor. Studies suggest that when people are made aware of online surveillance, by for example, the government, they “were less likely to speak or write about certain things,” “less likely to share personally created content,” and overall more likely to be cautious in their speech. This chilling effect has been found to have a greater effect on women and young people. It is easy to see how the same chilling effect could be replicated within a virtual classroom or exam setting, as a student knowing they are being watched or recorded could lead a student to curb what they want to say. The Electronic Frontier Foundation suggests that this chilling effect could thereby “break down the trust among students, teachers, and school administrations” and ostensibly discourages vision of schools as centers for academic growth and self-actualization.
There is no doubt that these online and software tools have become both necessary and commonplace since the onslaught of the pandemic. However, students and their parents can become more conscious of their potentially harmful effects and perpetuation of inequality. Additionally, educators and school administrators should be more conscientious about the applications that they decide to use because virtual learning and testing programs could have detrimental effects and far-reaching consequences on student privacy, inequality, and speech.
About the Author: Jamie Smith is a 2L at Cornell Law School. Originally from Massachusetts, Jamie graduated Magna Cum Laude with a Bachelor of Arts in Communication from the University of New Hampshire. Jamie is an Online Associate for the Cornell Journal of Law and Public Policy and a member of Cornell Law School’s First Amendment Clinic. Jamie is thrilled to be working for the Surveillance Technology Oversight Project this upcoming summer. When not in school, Jamie enjoys knitting, baking, and watching Bravo.
Suggested Citation: Jamie Smith, Zooming in on Student Surveillance: Protecting Student Privacy in the Age of COVID-19, Cornell J.L. & Pub. Pol’y: The Issue Spotter, (Apr. 2, 2021), http://jlpp.org/blogzine/zooming-in-on-student-surveillance-protecting-student-privacy-in-the-age-of-covid-19/.