Who has the Right? by Bob Sprankle

10/21/2011 1:18:16 PM
I've been using a new LiveScribe pen for several weeks, and I must say, I love it. It's an amazing tool, and what I would have given to have such a device when I was back in college, taking notes. I'll let you explore the pen on your own over at LiveScribe (and hopefully I'll be able to give a more thorough review of it in a later post), but I'm going to focus this blog entry on an issue that, while hypothetical here, has probably already arisen or will arise at some point... possibly at a school near you.

Before I paint the scenario, let me just give you the bare-bones basics of the LiveScribe pen:
  • it's a pen (you can write with it)
  • it can record audio (which can be played back later)
  • you can click on any part of the note you've taken (on special LiveScribe paper) and it will play the audio that was recorded when those notes were taken (in other words, if you were listening to an hour long lecture, you could review the important parts of the audio quickly by just "tapping" on sections that you've, say, put a star next to... therefore, rather than listening to the entire hour, you could review just the most important parts in minutes
  • there is a plethora of other scenarios for its use beyond what I just described above.
Ok: now for a fictional (?) scenario:

"Student A" has access to a LiveScribe pen. He/she has difficulty capturing notes during lectures (this could be at a high school, college, etc) and the LiveScribe pen is a lifesaver for Student A. He/she writes down as much as she/he is able to during the lecture, but is able to quickly review the most important parts (in preparation for an exam, paper, etc) by clicking on the different parts of the "capture."

Student A is a responsible student. He/she lets the teacher/professor know about the tool before recording in order to get consent from the teacher for use of the tool.

The teacher flatly refuses. Reasons given could be any or all of the following:
  • "I'm uncomfortable having my lecture recorded."
  • "You have permission to record me, but you don't have the permission to record the rest of the class, and I don't have the right/power to grant the permission to record the other students."
  • "Knowledge of being recorded could have a stifling effect on class discussions."
  • "Your recording could be shared with other students, and thus have an increase on absenteeism."
  • "You could use the audio to create an edited 'mashup' of my words in some audio editing program, and make me 'say' something I never said."
  • "We don't have a policy allowing recordings in our school."
  • "We have a policy banning audio recordings in our school (possibly our state)."
  • "This tool would give you an unfair advantage over other students in the class who don't have access to the recording."
  • "The pen will be a distraction in my classroom."
  • "The answer is 'no' and I don't need to give you a reason; it's my classroom."
Who has the right here? Does the teacher have the right to deny the student from using a tool that will benefit his/her learning? Or... does the student have the right to use any tool that will ensure success and overcome a learning difficulty or help strengthen his/her acquisition of knowledge in a modality that he/she is not adept in (i.e., not being an "auditory learner" would make lecture-style delivery of content a struggle)?

Before you answer (and I hope you do in the comments section below), you may want to visit the following links to review the issue of recording in a classroom from various "lenses." I've included stories related to video as well as audio recording in order to illustrate that this is an issue that is certainly in flux and, at times, volatile:
  1. First, and foremost, check your state's laws regarding recording (with or without consent) at the Citizen Media Law Project. Were you aware of your state's law? Does your state have a law regarding recording without consent? Does it cover the scenario above? For example, would Massachusetts' "Public Meetings" Recording Law cover classrooms? Are classrooms considered "Public places?" (see the next link)
  2. Warning: this next link is a pretty sad story and has no connection to the LiveScribe scenario above. However, it is relevant to the discussion as it illustrates the battle to define classrooms as "Public" or "Private" settings: "Is it Legal to Secretly Record a Teacher in Class?"
  3. This link takes us back to Massachusetts, highlighting a conversation about the ambiguity of the law.
  4. I have to also include this great article from Andy Carvin ---reaching all the way back to 2006!--- that echoes concerns in the last link (yes, this is an issue that has a history). Again, while not directly related to using the LiveScribe pen (more broadly covering the "emergence of citizen's media," I can't help but wonder that when Carvin asks, "Are there cases where any form of secret recording would be deemed acceptable?" that this would include a student secretly recording with a LiveScribe pen (where permission has been denied) in order to ensure success with learning.
  5. Here's a post that addresses both the "woes" of recording with the LiveScribe Pen on the sly and recording with consent.
  6. Here is LiveScribe's advice about legality: "What are the legal issues surrounding recording conversations and lectures with a Livescribe Smartpen? Similar to using cameras, cell phones, digital voice recorders and other consumer electronic devices, the owners have a responsibility to behave ethically and demonstrate common courtesy when it comes to personal privacy."
  7. Also, check out this David Pogue article where he has a high school student review the pen. I especially like this quote when examining the pen's distraction potential: "Look, I’m a teenager. A laptop makes it incredibly easy to mask that you’re playing a game during a lecture or perusing Facebook... [w]ith the Echo smartpen, it is a lot more difficult to fool around."
  8. And, finally, my favorite post in my recent searching from "The Wrightslaw Way to Special Education Law and Advocacy" that addresses the rights of students who are fortunate to have an IEP and therefore "eligible for special education services under IDEA." Note: read the comments as well to see the struggles that still exist (i.e., the comments from "Wanda").
But... what about the student who doesn't have an IEP? Who gets to decide the final answer of whether the tool is allowed into the classroom? Surely, we can't simply discount a teacher's trepidation of being recorded (especially when the final destination of the file is out of the teacher's hands... can you say, "YouTube?"). I don't think many would argue that alerting teachers to the fact that they're being recorded is proper and should be standard practice, but, should CONSENT actually be required? Clearly, many state laws have already answered this, but were they thinking about the LiveScribe pen when they wrote these laws?

Are we lumping tools like the LiveScribe pen in a "Wiretapping Law" legal category, when they should be seen instead as Assistive Technology tools protected by laws such as IDEA, or even seen just a necessary tool "to get the job done?"

I wonder if regular pens were ever banned from classrooms. They can "record" words too. Is a LiveScribe pen just a "Pen 2.0?"

In thinking and searching about this issue, it seems like there are a lot of unknowns, questions about legality, and strong opinions on both sides of the argument. One thing is clear to me, however: this is a complicated discussion that needs to be happening in preparation for the ever increasing evolution of assistive technology tools. Who gets to decide the allowance of such tools in the classroom? Is this a teacher decision? Is it a School Policy issue? Is it a State or National law that will ultimately decide? Are you comfortable having a student use a LiveScribe pen in your classroom? Are there rules/guidelines/expectations that need to be established? Has your school already created these?

When I asked one of my 3rd grade students (whom I've been using the LiveScribe pen with) about who ultimately has the right to decide whether the tool can or can't be used, she said:
"I'd go with the student. If it's going to help you with learning... and the kid really wants to do all this ---they don't want to get this bad grade, they want to do this--- then why can't they have this tool? It would help them, so I'd go with the student. I really would."
What are your thoughts?

(By the way, I have that quote verbatim because she allowed me to use my LiveScribe pen so I made sure I had it right.)
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