| Abstrakt: |
All across the nation, high schools and middle schools are quietly entering into contracts with software companies to monitor the online activity of their students, attempting to predict the next school shooter or to intervene with a student who might be contemplating suicide. Systems using algorithms powered by machine learning trawl the Facebook posts of fifteen-year-olds and weed through the Twitter feeds of seventeen-year-olds. When certain keywords or features are flagged, the posts are forwarded to school administrators, who can decide whether the post requires an intervention and whether the student requires discipline. Who (or what) decides what these keywords are? What protections are given to the massive amounts of student data these third parties are collecting? Do parents and students even realize such online surveillance is happening?. Too often, the answers to these questions are unclear. This Article explores the legal and policy questions related to this new era of surveillance, which is fueled by machine learning. Although this technology is relatively new to schools, it has been used for decades now in the criminal justice system, which has embraced sentencing algorithms and predictive policing. As is true with so many things in the criminal justice system, there is evidence that these technologies have had a disproportionate impact on people of color. In much the same way, evidence is emerging that the online monitoring of students is having a disproportionate impact on students of color. Despite having an aura of neutrality, at each stage in the machine learning process, there is a possibility for bias to creep in. The legality of schools entering into contracts for third-party surveillance of their students is uncertain, as courts have not ruled on it specifically and have just begun to rule on the legality of schools regulating student internet speech at all. The fact that every state has a cyberbullying law that arguably requires schools to police their students' online speech complicates the legality question. This Article explores what legal challenges to third-party surveillance under the First and Fourth Amendments and the Equal Protection Clause might look like, and the likelihood of success of those arguments. Because the legal challenges are hypothetical at best, and perhaps years away, the Article concludes with some policy recommendations aimed at ensuring safety and fairness for all students. [ABSTRACT FROM AUTHOR] |
