'Under Their Eye: The Surveilled Student' by Danielle Keats Citron in (2023) 76 Stanford Law Review (forthcoming) argues
We live in a golden age of student surveillance. Some surveillance is old school: video cameras, school resource officers, and tip lines. Old-school surveillance, which is largely cabined in time and location, is now paired with new-school surveillance, which extends monitoring far beyond school hours and hallways. School-provided laptops have corporate software installed that does two things: first, it blocks “objectionable” material and informs administrators about the content that students tried to access; second, it scans students’ online activities wherever (home) and whenever (weekends). If inclined, teachers and school resource officers can watch in real-time students’ searches, browsing, emails, chats, photos, calendar invites, geolocation, and more. Companies continuously monitor students’ laptop activity in the name of safety. Student surveillance is 24 hours a day, seven days a week, 365 days a year. There is no reprieve.
This essay does what many school districts and companies refuse to do in the open—provide a clear-eyed analysis of the costs and benefits of student surveillance. My assessment is limited to what investigative journalists, advocacy groups, and researchers have discovered about opaque corporate practices and companies reveal. What we know is too little—the lack of transparency is part of the problem. Lawmakers and the public need a full view of the stakes, so they can have a meaningful say.
Children’s safety is a paramount value. The question remains whether student surveillance protects students from self-harm, violence, and cyber bullying, as companies claim. School administrators say that the monitoring services make them “feel” safer and better informed. But feeling isn’t fact. Continuous and indiscriminate monitoring of students’ online activities is “security theater.” From what we know, students may be less safe and less well-off. Companies claim that their algorithms detect suicidal ideation, bullying, and impending violence, and that content moderators alert school officials and law enforcement so they can prevent harm. Proof of concept is scant, but from what we do know, most often, alerts from surveillance companies create a chain reaction of discipline for minor infractions. Serious punishment, like suspension, is disproportionately meted out to Black female and male students. Monitoring systems “out” LGBTQ+ students to teachers and parents (who may be unsupportive or worse). These costs are mostly borne by students from disadvantaged backgrounds—a blow to equal opportunity.
Dragnet-style surveillance exacts profound costs to what I describe as student intimate privacy. Student intimate privacy is essential for children’s self-development and self-expression. Unlike most other periods in their lives, students experience tremendous personal growth and development. Students’ job is learning, listening, reading, speaking, exploring, and befriending. It is figuring out who they are and want to become. Schools play a central role in all of that—their job is preparing and cultivating an engaged citizenry. Student surveillance diminishes that potential. It harms students as listeners because filtering software blocks sources of knowledge, including news stories and resources for sexual health; it harms students as speakers because it creates an atmosphere of fear and intimidation that results in self-censorship and conformity.
Schools justify their contracts with surveillance companies by pointing to a federal law designed to prevent students from accessing obscene material, a law that by its own terms rejects continuous tracking of students’ online activities. Congress must step in to clear up the confusion. Lawmakers should provide incentives to schools to ensure that surveillance technologies work and that they minimize intrusions on student intimate privacy, free expression, and equal opportunity to the greatest extent possible. Reforms providing vigorous protection for students’ intimate privacy are crucial to students’ free expression and schools’ role in cultivating democratic citizens.
