May 27, 2009

Terms of use, whether you like it or not


A teacher got a letter-in-the-file for not using our school data management computer enough. Without divulging the name of the system (I don't know how many schools have it), it is accessible from school computers through an https:// address. This is the first time I've heard that someone has been formerly disciplined about the use (in this case, the non-use) of computer data. It doesn't look good.

For the 100th time: WHERE IS THE UNION???

A blog I wrote a couple of weeks ago about my first experience with ARIS — that’s the system the DoE bought when it went on a technological shopping spree with taxpayer money — made me reassess my relationship with school computers.

Don't get me wrong, I like computers. I especially like them when I have a fair degree of control over who gets to know when I’m online, what kind of stuff I’m doing there and whom I’m writing to. ARIS will not give me those pleasures, and I will probably resist using it as long as I can.

Within a week of that post, I was refused access into my school email account and could only get back in by re-registering and accepting the DoE’s “Acceptable Use Policy” (AUP). I don’t remember doing that before, but maybe I did, when I was less burnt by this system. In any case, I hope that their forcing me to re-register was part of a general housekeeping exercise and that they weren't just targeting me. Did everyone’s access to nycboe get cut within the past couple of weeks?

Being wary of anything the DoE does at this point, I decided to actually read the AUP they were telling me to sign off on before I could get back onto the system. If you're interested in the whole text, it's online here.

It’s not that I oppose a system that tells you what you can and cannot do when you're on it. What I thoroughly oppose is that we've been forced into having a DoE email account in the first place and then told all kinds of stuff about how it has to be used.

For one thing, by making us sign the AUP, someone — whether it’s a local administrator or a higher-up at Tweed — is telling us to give up a right to privacy. While it is true that privacy is not an iron-clad Constitutional right, courts over time have sought to give it some definition, as explained in this passage:
The Constitution does not specifically mention a right to privacy. However, Supreme Court decisions over the years have established that the right to privacy is a basic human right, and as such is protected by virtue of the 9th Amendment. The right to privacy has come to the public's attention via several controversial Supreme Court rulings, including several dealing with contraception (the Griswold and Eisenstadt cases), interracial marriage (the Loving case), and abortion (the well-known Roe v Wade case). In addition, it is said that a right to privacy is inherent in many of the amendments in the Bill of Rights, such as the 3rd, the 4th's search and seizure limits, and the 5th's self-incrimination limit.
Here's the 9th Amendment, for those who haven't memorized it: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Way down in the AUP's clause on Privacy, there's this startling remark:
e) System users have no privacy expectation in the contents of their personal files and records of their online activity while on the Department system.
Must we agree to this? Backing up a bit, there’s this:
a) The Department reserves the right to use "cookies" on its site. Cookies are computer programs that . . . store information about a user on a computer hard drive or disk. Information stored includes, but may not be limited to, the date and time a user visits the site and information about the user’s activities while online. Any information gathered is obtained solely for the purpose of improving the Department’s services and providing the system with statistical information to assist in improving teaching and learning by teachers and students respectively.

Except as otherwise provided in this Internet Acceptable Use Policy, the Department will not use cookies to gather personal identifying information about any of its users. Personal identifying information includes, but is not limited to, names, home addresses, e-mail addresses and telephone numbers.
I’m not so worried about the “personal identifying information” mentioned in the 2nd paragraph above. What I am very worried about is the kind of “statistical information [the DoE will gather] to assist in improving teaching and learning.”

That’s because I don't much trust the DoE’s methods to improve teaching and learning. Just look at its abysmal record on class size reduction, the misrepresentation of test results and graduation records, its campaign against senior teachers and the way it stocks schools with so many uncertified and possibly transient educators, and its fake accountability/grading systems to achieve the data outcomes they desire.
Users should be aware that their personal files may be discoverable in court and administrative proceedings and in accordance with public records laws.
At this point, I’m saying to myself I really don’t want any part of this thing.

And right after that I’m asking: Don’t we have a Union to object to our being forced to sign onto such an invasive system?

It’s worth noting some other things in the AUP, like the section on “Freedom of Expression," which talks solely about the items set forth in the Bill of Student Rights and Responsibilities: there's absolutely no mention of free speech for staff.

I’m also not crazy about the clause in “Inappropriate Language,” which tells users not to use “rude, inflammatory . . . abusive or disrespectful language” or engage in “personal attacks,” but I can live with it, since there are so many other places where we can talk about the BloomKlein debacle — and talk about it we really must.

It's rather quaint that we have been given permission to engage in "incidental use" during our duty-free time ("staff may be permitted to use the Internet for purchasing a book for personal use during their lunch hour"), though I don’t know many teachers who have luxury of a duty-free lunch. Maybe that's what goes on at Tweed.

The AUP says that teachers who make their own web pages must “provide a resource for others." They don't mean like this one, of course, though I frequently quote from primary sources. Web pages created on DoE computers must “reflect well upon the Department, district and school,” which is really the kind of thing we used to expect from the Soviets or Chairman Mao.

There's a fair amount of talk about violating these AUP rules: employees breaking the rules "will be handled by appropriate discipline.” It's not that I’m intending in my lifetime to surf salacious sites on school computers or hurl obscenities at anyone in Outlook Express. But, there’s a good deal of ambiguity here. Just how critical of Joel Klein and Tweedledom can one be on a DoE computer without being disciplined? Have they assigned a team of ├╝bersnoops to monitor the internet activity of critics like myself? And what might be that "appropriate" discipline alluded to above that would keep me and others like me in line?

If the truth be known, I saw a ray of hope in this sentence:
The Department may revoke Internet access in its sole discretion.
That would suit me just fine, because then I wouldn’t have to read all that self-serving crap administrators always circulate to staff. And if my principal really wanted to speak to me, she’d have to send me a note in my mailbox or just pick up the phone, without an infinite number of people getting CC or BCC copies.

Talking about e-mails, the AUP not only orders us to use it “frequently," but be sure to do certain things when we’re on it, like delete unwanted messages “promptly.” Fine if the system were optional, but it isn’t. First they force us to have an account, and then they tell us how and how often to use it.
It's as if they have boundary issues or something.

Lastly, I would be remiss in not citing these paragraphs on the DoE’s “Acceptable Use Guidelines” for emails.
"Acceptable" e-mail activities are those that conform to the purpose, goals, and mission of the DOE and to each user's job duties and responsibilities . Users shall have no right to privacy while using the DOE's internet or e-mail system . E-mail may not be used for personal purposes during working hours, except that users may engage in minimal e-mail activities for personal purposes, such as family correspondence, if the use does not diminish the employee's productivity, work product, or ability to perform services for the DOE.

"Unacceptable" use is defined generally as activities using DOE hardware, software, or networks at any time that does not conform to the purpose, goals, and mission of the DOE and to each user's job duties and responsibilities . . .

NOTE: Users may be subject to limitations on their use of e-mail as determined by their supervisor. The DOE reserves the right to examine any/all e-mail or Internet correspondence for security and/or network management purposes.

Violation of this e-mail policy may result in disciplinary action.

The underlining is editorial, and on the grounds of these bits alone, we should all consider boycotting the whole system.

Weingarten, you're a lawyer. Doesn't any of this offend you?


  1. Oh, yes, and one other very important thing concerning E-mail stored on computers located at State or local government agencies such as DOE:

    It may be accessible to members of the public and press under the New York Freedom of Information Law (FOIL):

  2. Woodlass,

    Seem my personal intuition that we should be using anything electronic belonging to the DOE only to do the barest minimum has been verified.

    (Thanks for mentioning the "cookies." You know, after a session on the DOE system you can purge it's cookie(s). One of them is easy to spot it's simply "". At this time I personally can't say if there are more and / or obscure ones. Perhaps some strong tech person can enlighten us further.)

    Having said that, the DOE's AUP is not much different from that used in private industry.

    People keep agreeing to all kinds of AUPs -- mostly without reading or understand them or concluding that they need to do without a fight (and it's nearly impossible to fight these AUPs alone unless your a billionaire

    Organizations like the DOE keep using them and enforcing it at their discretion.

    If these issues interest you, take at look at the Electronic Frontier Foundation:
    Consider supporting it's activities.

    Once again Woodlass thanks for Your Blogging!


    "The price of freedom is eternal vigilance."
    -- Thomas Jefferson

  3. Yes, I didn't actually know but suspected this kind of document is used by corporations, and why wouldn't they. They have to keep things under control, right?

    Thanks for the cookie information, and will check out the site you mention...

    What do you think would happen if I told my principal to take me off the email system as I am uncomfortable signing away my rights to privacy?
    Would I have the right to do this? Should I be a guinea pig and test it out?