Frequently Asked Questions About Educator Privacy
Answers to frequently asked questions about K-12 distance learning from the MTA's Legal Division.
- Which distance learning platform should an educator use?
Many districts have already purchased, or are in the process of purchasing, a specific distance learning platform. If your school district has selected a distance learning platform, we recommend that educators use that district-approved platform for distance learning. If an educator has concerns about the inadequacies of a particular platform, concerns regarding whether parental consent is required for students of a certain age to use a particular platform, concerns regarding a lack of necessary technology to effectively perform distance learning, educators should work with their local associations to negotiate these issues.
If your school district has not chosen a videoconferencing or virtual learning platform, we recommend that your local association negotiate the choice of distance learning platform with your school district. An educator could unwittingly violate FERPA by using a distance learning platform that has not been approved by the school district.
- As an educator how do I protect myself and my privacy during distance learning lessons?
If educators have privacy concerns about the use of distance learning platforms, these concerns should be raised with local associations and bargained with school districts. Districts have an obligation to take reasonable measures to protect the privacy of their staff.
In addition, we recommend the following:
- Be aware of your professional online presence – work in a neutral, professional space; dress in appropriate clothing; minimize multitasking; and conduct yourself as you would in your physical classroom.
- Establish a workspace in an area separate from other household members (if possible) to minimize distraction and interruptions.
- Some distance learning platforms provide for the option of a “virtual background” that educators may use to disguise their home space from student view.>
- Follow your school district’s rules for online engagement at all times.
- Make all your personal online accounts private and establish professional accounts on all platforms and applications that you must access for distance learning.
- Ensure that nothing can be seen on screen that identifies an educator’s address (i.e., unique landmarks, mail with address in view, etc.).
- Close all windows not necessary for the lesson to prevent against accidental display of personal information or inappropriate matter.
Ultimately, just as in a physical classroom, a school district may not be able to completely safeguard an educator’s privacy. Now, more than ever, we encourage educators to teach as though they are being recorded.
- If the school district wants to record my distance learning lesson am I obligated to consent?
The recording of distance learning lessons should be negotiated between your local association and school district to ensure that educator privacy concerns are considered and addressed. If a school district requires the recording of distance learning lessons and an educator refuses to consent to such recording, the educator may be subject to discipline.
- I am concerned that my distance learning lessons have been, or will be, recorded and shared on the internet or social media without my permission. Do I have legal recourse? What can I do to prevent such unauthorized disclosure?
The Massachusetts wiretapping statute, G.L. c. 272, § 99, prohibits, among other things, certain secret recordings without prior consent. A recording is not secret if a participant to the communication actually knows the conversation is being recorded and continues to speak.
In the context of distance learning, many videoconferencing software and other virtual learning software applications will alert participants that someone has started to record the videoconference (through the videoconferencing platform). If an educator is alerted that a recording has started and does not want to be recorded, the educator should request that the participant stop recording. If the participant insists on recording the videoconference, the educator should close application and contact the local association and school district.
A distance learning platform obviously will not alert an educator if a participant records a videoconference with another recording device (i.e., iPhone). If an educator can see a participant recording a videoconference with a separate recording device, the educator should ask the participant to stop recording. If the participant will not stop recording, the educator should close the application and again contact the local association and school district.
Because a school district cannot protect educators from all secret recordings, it is possible that an educator may be secretly recorded during distance learning. A student who has secretly recorded an educator during a distance learning videoconference would be criminally and civilly liable for such secret recording. In addition, criminal and civil penalties apply for use of the secret recording by a third party. For instance, if a school administrator knows that a recording was secretly made and nevertheless tries to discipline an educator for the contents of that recording, the school administrator would be criminally and civilly liable for such use.
Given the criminal penalties and civil liability at stake, school districts should support educators’ legitimate privacy concerns in navigating distance learning by adopting policies that prohibit the unauthorized recording and/or dissemination of videos, images, or other data captured during the course of distance learning. Educators should inquire whether their districts have such policies. In the absence of such policies, educators should work with their local associations to propose adoption of such policies.
We recommend that local associations work with school districts to develop a written agreement for students (or parents and/or guardians) to sign or click, containing the language below or similar:
The following content is for educational purposes only. By accessing this material, I agree not to share this content with anyone not enrolled in the class or assisting an enrolled student. Unauthorized distribution of any distance learning content, including sharing video recordings or screenshots on the internet or social media, is strictly prohibited and could result in disciplinary action and/or the suspension of a student’s access to certain distance learning materials.
Districts are not required the adopt such policies or protocol, but they do have an obligation to take reasonable measures to protect the privacy of students and staff.
- Can my district require me to be available by phone or email to students and parents?
While your school district may require you to communicate with parents and students in some capacity, educators should not be required to provide students and parents with their personal telephone number or to be available to communicate with students and parents at all hours of the day. We strongly recommend not providing your personal telephone number to students or parents.
In addition, we also recommend that educators avoid communicating with students and parents through personal social media messaging platforms. Doing so risks making all your communications on these platforms subject to review by your school district in the event of an investigation or in response to a record request.
We recommend that educators consult their Acceptable Use Policies and work with their local associations and school districts to negotiate protocols for communication with students and parents during distance learning.
- Should I use my personal device(s) for distance learning?
We strongly recommend against using your personal computer, tablet, or cellphone for work-related purposes. Records created on any of these devices may be subject to disclosure. As can be the case with communication with students on social media platforms, the creation and storage of educational data on your personal devices may subject your personal devices to review by your school district in response to an investigation or data request.
If you have no other option but to use your personal device(s) for distance learning, we recommend segregating work-related documents and communications to specific file folders so you can quickly locate and produce work-related documents in the event of a records request.