Red Tape or Legal Backing

I know I’ve been a bit quiet recently. This is mainly down to workload (lots of meetings), a lot if DIY (converting part of the house/garage into a home office) and bouts of Man-Flu. However, I have been inspired a bit with a new group I have been involved in over on LinkedIn.

There is a new group, for those looking at the legal position on eSafety when it comes to areas such as monitoring, logging and accessing what children are doing with computers in schools. The group was formed by a Brian Bandey, Doctor of Law specialising in international IP, IT, Cloud, Internet and eSafety Law, and he started the ball rolling with the following breakdown. It is a part of a longer report which I think will make interesting reading.

The Legality of a School Technologically ‘reading’ a Pupil’s web activity

or

“Interception of Pupil Web-Browsing”

Introduction

The question being posed is, in a sense: “What are the law-based issues over Pupil Internet-Browsing Activities being captured by desktop monitoring services.” There’s a reasonably complex network of different Laws from different spheres active over this area and they don’t apply in equal measure to pupils vs. staff. However – although the action of the Law can be summarised, it needs to be understood that a considerable amount of detail is being lost.

Interception and Monitoring

The two main pieces of legislation in the UK with regard to interception of communications (which includes monitoring)are: The Regulation of Investigatory Powers Act 2000 (‘RIPA’) and The Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (‘the Lawful Business Regulations’).

In essence RIPA provides that:

–           to intentionally and without lawful authority;

–           intercept a communication on a private system in the course of its transmission;

–        unless it is done or authorised by someone with the right of control e.g. the headmaster or his IT manager acting on his authority;

–           …. is a criminal offence.

Interception is defined widely in RIPA and includes making some or all of the contents of the communication available, to someone other than the sender or intended recipient. It is thought that transmission may also cover access to both read and unread messages e.g. on a academy/school central server.

How does the School have a Legal Right to Intercept?

An obvious route for the School is to secure good evidence of Parental Consent in the case of Pupils and Employees consent in the case of Staff. For ‘belt and braces’ – one needs to ensure that authority is given by the person (internally) who has “the right to control”.

So the Law is that Lawful authority is required to intercept:

–        If there is no lawful authority then consent of the sender and receiver of the communication is needed;

–        RIPA allows some limited interception by the controller of the system without the consent of the sender or the recipient;

–           RIPA sets out the conditions under which third parties such as the police may intercept.

–        The Lawful Business Regulations are the main source of lawful authority for the controller of the system to intercept and monitor. They permit the monitoring or keeping a record of communications for purposes such as standards, national security, prevention and detection of crime, investigating unauthorized use, and ensuring effective system operation.

–        The interception must also be relevant to the business of the system controller. (NB: This is the clinching argument for Educational Establishments – since there can be no argument that Interception and Monitoring of Pupils Web-Browsing is entirely relevant to the School’s activities)

–           Every effort must have been made to tell users that interception may take place.

–        Communication which has been intercepted and contains personal data is subject to the Data Protection Act 1998. (I’ll return to this subject)

Thus, it begins to become obvious that the Interception and Monitoring by Schools of Pupils (and Staff) Web-Browsing (and E-Mails for that matter) is perfectly lawful if carried out sensibly with reference to RIPA and the Lawful Business Regulations.

The Obligation to Monitor and Intercept

This is a serious and complex subject but I must touch on the School’s obligations to actively monitor Pupil-Pupil E-Communication (I talk of E-Communication since Pupils often shuttle communications through FaceBook or BeBo which aren’t e-mails per se).

The School must simply not ignore its Common Law Obligations (the Law of Negligence) and its Statutory Obligations (the Health and Safety Acts and the Education Act 2002) to keep Pupils Safe.

Educational Institutions have a duty to ensure the safety of their students and to protect them from any reasonably foreseeable harm. Liability arises for psychiatric conditions caused by repeated exposure to obscene or offensive material when using the institution’s IT facilities.

It is also now well-established that psychiatric conditions arise for the victims of Cyberbullying.

Finally, It is also now well-established that such psychiatric conditions which arise for the victims of Cyberbullying can lead to suicide.

Data Protection Law

This is a simple issue. Schools collect a very great deal of “Personal Data “ (a term defined under the Data Protection Act) on their Pupils. E-Mails can be Personal Data and the School simply needs to treat this data like any other – that is in accordance with the Data Protection Principles.

Human Rights and Privacy Law

The Law has always recognised that Students when at School or some other Educational Establishment have only limited rights to Privacy.

Consider:-

A Teacher sees John whispering to Jane in the Class. She moves forward (unnoticed) to overhear the conversation and overhears John’s whispered (bullying) threats.

Are we really saying here that John had his Right to Privacy under the UN Convention on the Rights of the Child (to which the UK is a signatory) and the Human Rights Act 1998
(Article 8 of the Human Rights Act 1998 is the Right to Respect for Privacy and Family Life) contravened?

The answer is a resounding “NO”. So it is with any pupil communication

It should be noted that in the famous case of Copland v. United Kingdom the Court considered that the collection and storage of personal information relating to the applicant through her use of the telephone, e-mail and internet interfered with her right to respect for her private life and correspondence. While the Court accepted that it might sometimes have been legitimate for an employer to monitor and control an employee’s use of telephone and internet – the need for informed consent was paramount.

But, as a matter of Law, Children cannot give informed consent.

So we return to the overarching need for the School seeking appropriate consents from parents.

Dr Brian Badey

www.drbandey.com

It really does cover so much, but it needs a bit more teasing out for me. When thinking about the barriers to adoption and acceptance of AUPs in schools it would be helpful to identify the areas which are covered under legal grounds for children, for introducing children into what they are likely to find or have to deal with as adults and which sections are there as moral/ethical agreements between the school, the children and the parents.

I’ll try and keep things up to date on here as interesting comments are made by various people. It is also worth pointing out the use of words such as Negligence, Law, Consent as these are specific to how these words are used within law (hence why they are capitalised), yet there are many times other with reference these words with using them solely with respect to the legal meaning, but as part of context from other Acts of Law, reports, government advisories, notices of Statutory Requirements and so on.

The group is gaining a broad range of members, but it could do with a few more specialists … perhaps an expert in Child Law, those involved in safeguarding investigations and those involved with unions (to work out the impact on staff, who are being monitored by the same systems).

(Edit – I’ve updated the post with the full statement from Brian).

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