BY DIANE KLEIN
The following is reposted with permission from Dorf on Law. It is the fourth in a series on online teaching in the context of the global pandemic. The previous posts are here, here, and here. Diane Klein is Professor of Law at the University of La Verne.
In two recent posts, I have presented some arguments in favor of recording your classes and captioning those recordings, based primarily on accessibility issues, including economic (“digital divide”) and pedagogical/legal concerns, and the costs and risks of failing to do so. Without taking any of that back, I’d now like to present the other side: not arguments against taping per se, but some of the distinctive risks associated with recording your classes – and especially, synchronous classes in which students participate. In the absence of clear institutional taping policies, the problems are non-trivial, the best way to negotiate through them is far from obvious, and the right choice for one class, school, or professor may not be the same as for another.
When it comes to university taping policy, the late Boston College law professor Alexis Anderson’s 2017 Journal of Legal Education article, “Classroom Taping Under Legal Scrutiny,” is a must-read. Anderson identifies at least four key components of an appropriate taping policy: advance notice to all faculty and students; clear “conditions of access and use of any recordings”; a way for students to “acknowledge restrictions on dissemination and use…before access [is] granted to posted recordings”; and a way to “identify and publicize the consequences attached to a breach.” She notes, with characteristic understatement, “Absent a well-developed taping policy, a significant likelihood exists that inadvertent legal lapses and pedagogical challenges will occur.”
In many universities, the nearly-overnight transition of all face-to-face (F2F) courses to online delivery was imposed with no clear taping policies in place at all. That state of affairs makes Anderson’s likelihood a certainty. Creating suitable policies, with faculty input, needs to move up on the priority list of every university (yes, even now).
But until that happens, the risks fall into three categories: purely legal; professional/personal; and (last but not least!) pedagogical.
The primary legal risks that I see include laws against nonconsensual recording (wiretapping); Family Educational Rights and Privacy Act (FERPA) and other forms of invasion of privacy; and loss of intellectual property. Anderson wrote about taping of F2F class meetings, and remarked (in a footnote) that “[d]iscussion of educational recording inherent in online and distance-learning courses is beyond the scope of this article.” Because synchronous online classes are not “inherently” recorded, nor were the F2F classes that have now been transitioned to all-online, Anderson’s analysis applies to the issues we now face, including but not limited to the absence of the implied consent to record attached to an online course.
In more than one recent conversation about the all-online transition, I have seen professors (not law professors, thankfully!) blithely reassure one another that all you have to do to avoid any legal problems with recording is ask students to “consent” – and voila! problem solved. They seem not to have considered either what to do if any students say “no,” or whether the consent they seek to obtain is genuinely knowing and voluntary. In Anderson’s view, “A nondisabled student who asserts that he will not attend a required class if it is recorded might pose a compelling challenge” to recording a class. If a class has an attendance policy, and suddenly in the middle of the semester, in order to get credit, a student is required to consent to being recorded, in what sense are they genuinely free to refuse? In this midst of this crisis, I have seen faculty members – including law school faculty members, and including law school faculty members with tenure – agree to waive all sorts of rights, including privacy rights and rights to their own intellectual property, for the sake of a smooth all-online transition or for “cybersecurity.” How likely is it that students are better informed than their own professors about the scope of the use rights they are transferring when they not only participate in online education but allow themselves to be videotaped?
Even if students do consent, consent to recording is not necessarily “all or nothing”; the chance of accidental taping (for example before or after the “official” class time) is real, and problematic. Anderson offers a fictional vignette about a student-teacher colloquy recorded after the class ended but with the taping system still running, but we need not resort to imagined scenarios. Professors, especially those using systems like Zoom for the very first time, have already reported taped classes that included audible student comments clearly not intended to be recorded. As Anderson puts it, “even a class taping policy involving advance notice and administrative oversight can go awry.”
Her conclusion? “A published taping policy providing appropriate advance notice to all members of the community is best designed to pass scrutiny under federal law.” But the all-online transition did not include any such advance notice or taping policy, published or otherwise. Announcements like the one promulgated at my home institution, that “all classes, including those offered at regional campuses, graduate programs, and the College of Law, are to be available online-only” as of some date a few days away, don’t even come close.
With respect to invasion of privacy (often protected by state law), including the unauthorized use of someone’s name, image, and likeness, as with the coronavirus, we are all vulnerable to one another, and we all may unwittingly put ourselves and others at risk. Some FERPA requirements are addressed by the Department of Education in a 2014 document called “Protecting Student Privacy While Using Online Educational Services: Requirements and Best Practices,” though it focuses primarily on the K-12 setting. But we all need to understand how telling your colleague in the next office some “unbelievable” thing a student said or did is not at all the same as sending them a link to it. Posts of screenshots, of comments, etc., may contain so-called “personally identifiable information” (PII), triggering FERPA protections of students. A student who takes a screenshot of you or other students (and that means of your home office, maybe) and shares it on TikTok or Instagram may be sharing information that is meaningless to them, but valuable to someone who may wish to do you harm.
Folks who think they’ll be safe as long as they do everything inside their school’s “learning management system” ought not to be so sanguine. Blackboard, for example, is both hackable (here and here), and proprietary, raising still another set of concerns: intellectual property. Faculty who are encouraged or even required to create lectures and upload them into Blackboard or a similar system would do well to inquire about who now “owns” your lecture. (This is the “robot Diane” issue I raised formerly, and it is significant enough that the AAUP has created the Faculty Anti-Privatization Network in part to address it.) This goes for students, too. No, there is probably not a lot of commercial value in your students’ comments about Pennoyer v. Neff – but suppose Blackboard owned video- and audiotape of Lady Gaga when she was enrolled in music classes at NYU’s Tisch School of the Arts from 2003-2005?
Even when you only record yourself, the professional and personal risks unfortunately go beyond the embarrassment of students seeing your (well, my) messy house, or a dog or a child interrupting an important point in your lecture. On Sunday, March 22, 2020, Charlie Kirk of Turning Point USA tweeted this: “To all college students who have their professors switching to online classes: Please share any and ALL videos of blatant indoctrination with @TPUSA [or] at TPUSA.com/ContactUs. Now is the time to document & expose the radicalism that has been infecting our schools[.] Transparency!”
If you don’t know who Charlie Kirk and TPUSA are, I’d be inclined to say you should count yourself fortunate – except that President Trump has appeared in person to address Kirk’s right-wing high school and college student group twice in the past year, to a rapturous response. He has 1.7 million followers on Twitter; in less than a day, the tweet above was retweeted four thousand times and “liked” nearly ten thousand times. Kirk himself, the group’s founder, represents the latest stage in the right-wing intelligentsia’s bow-tied devolution from William F. Buckley (Yale) to George Will (Princeton), on down to Dinesh D’Souza (Dartmouth), to Tucker Carlson (Trinity College). Not to be outdone by Sean Hannity, who enrolled but didn’t graduate from NYU and UC Santa Barbara, Kirk dropped out of community college at age 19, and immediately set about attacking American higher education and the allegedly left-wing radical faculty comprising it.
The virulence with which TPUSA goes after those it decides to target should not be underestimated. Yale philosophy Prof. Jason Stanley describes their M.O. this way, in a tweet thread responding to Kirk’s on Sunday: “They try to enlist outrage among alumni, who then contact the admin and chair. They will try to get an article in your student paper. The end goal is to get this into the ‘real’ media, first Fox News, then others….The volume of hatred is much, much worse for underrepresented minority faculty, especially Black faculty, and women.” Stanley speaks “as an individual who has been hit by this before,” and emphasized its seriousness. “This is an attack on academic freedom,” he tells us, likeliest to target public university faculty, and reminds us that “the most vulnerable faculty are adjuncts, lecturers, and untenured (in that order). They are right now at very serious risk.” He concludes, “Universities who open their faculty to this abuse without adequate mental health and legal protections are in dereliction of duty.” The AAUP’s chair of Committee A, Hank Reichman, agrees.
They do not exaggerate. The consequences for faculty members (and at least one grad student) of being targeted in this way are hard to overstate, and TPUSA is just one piece of an ugly alt-right puzzle. “Rabbit hole” does not begin to describe where one ends up trying to understand the internecine fighting between TPUSA and Nick Fuentes, the “groypers,” internet trolls, 4chan, “incels” and – yes, I’ll stop now. But once these folks have someone in their sights, they don’t stop – the death threats, letters to administration, and even, on occasion, in-person on-campus abuse, comes on like an unstoppable tidal wave of sewage.
With the number of recorded lectures going up as fast or faster than pandemic numbers, one might imagine that any particular class or professor is a “needle in a haystack.” But it only takes one or a few disgruntled students with time on their hands to make a complaint, and that’s easier than ever to do from behind the “safety” of a computer screen. The university after the all-online transition, with hundreds if not thousands of hours of recorded lectures, is a dangerous treasure-trove in these hands.
After arguing as much as I have elsewhere about the pedagogical importance of recorded, captioned lectures, it might seem strange for me now to argue that there are good pedagogical reasons not to record your live classes (as distinct from asynchronous lectures). Yes, if you record your students, they too are at risk of being mocked, harassed, or doxxed. But even if that risk is minimal, recording a class runs a real possibility of stifling class discussion, especially of sensitive or controversial topics. Students may not wish to be immortalized asking a “dumb” question or expressing an unpopular opinion. Who among us would wish for a few words taken out of context to become a sound bite that becomes a meme and goes viral? While the comparative anonymity of the online setting may embolden some students (both for better and for worse), it may intimidate or silence others. Recording exacerbates that concern, considerably.
And note that this issue arises as soon as you are engaged in any real-time online instruction, because the student-user has the ability to record it (by screen-capture or otherwise), whether you are doing so or not. Thus, even if you decide not to record, this needs to be accompanied by an instruction to students not to do so either (or for those who may have a right to record, an instruction not to reuse or publish any such recording, subject to accommodations issues).
Taken together, I think these concerns militate strongly against recording synchronous class sessions, and doing as much as possible to insure that (non-accommodated) students do not do so, either. If it is your preference, or your institution’s mandate, that you hold synchronous sessions (with or without asynchronous content as well), consider recording only yourself; or not recording at all (especially if the synchronous sessions are optional). Some less-good options might include destruction of the recordings after a set (and relatively short) time; honor codes requiring students to agree neither to record classes themselves nor to disseminate recordings; and relaxed attendance requirements, so students are not forced to consent to being recorded if they did not do so at the beginning of the course (as typically happens in a distance-learning scenario). Developing and promulgating a policy along the lines Anderson suggests, with robust protection for faculty targeted by Kirk and ilk, might also be a worthwhile agenda item for your next (online) faculty meeting.
