While the compulsory retention of every website visit for every person in the UK was recently debated and passed in the House of Commons in the Investigatory Powers Bill, the plans for statutory surveillance of every child’s Internet use, in schools and at home, has gone unnoticed.
Without Parliamentary or public discussion, children’s internet use will be monitored by third parties from September. This is despite widespread associated concerns – including choking off free speech, religious freedom, and staff feeling vulnerable – presented to the Joint Select Committee for Human Rights by experts in education and security legislation.
The brief paragraph 75 in The Department for Education (DfE) “New measures to keep children safe online at school and at home” statutory guidance Safeguarding in Schools, will impose a change from a duty ‘to consider’ web monitoring to one that ‘should ensure’ it for educational establishments, excluding 16-19 academies and free schools.
DfE advice offers little practical support to school leaders
The supporting advice to which the Government response points, suggests actively monitoring all screen activity during a lesson from a central console using appropriate technology as a solution, even in circumstances that suggest low risk. And that logfile information should be able to identify an individual user, and be reviewed regularly. Pro-active monitoring is suggested where alerts are managed by a third-party provider.
The Department for Education’s summary response and advice however offers little practical support to school leaders how to concretely take these things into account, while still meeting human rights legislation.
Without explicit clarity on the practice of monitoring personal electronic devices not owned by the school, we risk a slippery descent into schools made complicit in a privacy invasion of family life.
A statutory requirement should be explicit in its terms. Yet what “has appropriate filters and monitoring systems in place” means for different age groups, types of pupils, staff, school and home settings, is not.
Children have rights to be able to access information. On filtering, The UN Special Rapporteur’s 2014 report on children’s rights and freedom of expression stated: “The result of vague and broad definitions of harmful information, for example in determining how to set Internet filters, can prevent children from gaining access to information that can support them to make informed choices, including honest, objective and age-appropriate information about issues such as sex education and drug use. This may exacerbate rather than diminish children’s vulnerability to risks.”
vague and broad definitions of harmful information can prevent children from making informed choices
The Government’s response acknowledges there could be over-reliance on filtering, and that information on how to stay safe online is just as important. It acknowledges that it is possible to bypass filters and the risk of over-blocking of legitimate sites. The Government response and advice however is limited in the way of solutions to these practical issues.
In seeking to safeguard our children, we must also be alert to the way in which we do it, and the potentially greater risks as a result of blanket policies, including risk to their freedoms, their rights, and their trust in teachers and authority, as well as their own self confidence.
Children also have a legal right to privacy. The Court of Justice of the EU (CJEU) reiterated in an important recent judgment that the monitoring of a person’s online activities is a very serious interference with a private life and with his or her data protection rights:
“Legislation permitting the public authorities to have access on a generalised basis to the content of electronic communications must be regarded as compromising the essence of the fundamental right to respect for private life, as guaranteed by Article 7 [of the EU Charter of Fundamental Rights].”
these policies must be properly scrutinised, to avoid potential legal challenge
This statutory obligation which schools “must follow unless they have a very good reason not to”, will potentially put schools in a difficult, and costly position with opaque consequences.
The Government said in the consultation it wants to “test the expectation that these monitoring practices are already widespread”. If so, these potentially highly invasive policies must be properly scrutinised, in order to secure safeguards and transparency, and avoid potential legal challenge.
Responses to the consultation question suggested that the majority of schools already have software in place.
If so, the DfE could first engage with school staff, academics and experts, to undertake a thorough assessment of risk and benefit, both the tangible and intangible cost, not least to weigh the legal and human rights implications, to understand what effect these policies are having, before imposing invasive and unreviewed practices on every child in the country, and its costs on schools and staff.
This requirement slipped into the September 2016 guidance has opened a whole can of worms that needs carefully examined before being swallowed whole.
Je Persson is coordinator of defenddigitalme, which campaigns for children’s privacy rights with regard to the National Pupil Database.