Who has the Right? by Bob Sprankle
May
25
Written by:
5/25/2011 10:57 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:
- 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)
- 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?"
- This link takes us back to Massachusetts, highlighting a conversation about the ambiguity of the law.
- 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.
- Here's a post that addresses both the "woes" of recording with the LiveScribe Pen on the sly and recording with consent.
- 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."
- 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."
- 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.)
4 comment(s) so far...
Who has the Right? by Bob Sprankle
Great questions, Bob!
From an intellectual property perspective, I'd think the presentation in class is just like something we'd hear at a conference. We've been round and round about that at NECC/ISTE the past few years. My understanding is that the presenter/instructor DOES have to give permission to be audio or video recorded, and also has a right to know how that media will be shared and give permission for that sharing. I think this also applies to classroom settings. The presenter/instructor/teacher is the owner of the intellectual property of their teaching audio content (or at worst should be a co-owner with their institution) and it shouldn't be recorded/utilized without their permission.
If something illegal is going on, however, I'd agree it can be right to record without permission. That kind of documentation can be used to right the wrong. There was a good story on GMA in May 2008 illustrating this kind of situation:
Teacher Caught on Tape: Kindergartner 'Ignorant, Pathetic, Self-Absorbed'
http://abcnews.go.com/GMA/story?id=4945581&page=1
I agree recording in all cases could potentially help students, butI think the intellectual property side of this mandates we get permission before recording... in most cases.
By Wesley Fryer on
5/26/2011 4:02 PM
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Who has the Right? by Bob Sprankle
Wes, there's a key difference between a private conference and a public school classroom. Our obligations are different in the latter since they're governed by the Constitution...
I don't know of a court case that's definitively ruled on how 'public' a public school classroom is. I think it's extremely arguable that a room full of kids isn't private at all, which sort of removes the privacy angle on a teacher's speech. You can't claim a right to privacy in a public area.
There's still the copyright angle, in which case you'd have to look at the student recording's potential impact on present or future monetization, and/or control of one's own speech. Again, quite iffy argument these days, I think, for teachers.
So all of of this is to say that, as in many areas, the law is not keeping up with the scenarios we're now facing. This of course leaves us very uncertain and unsettled.
Or we can start living our classroom lives with the recognition that they too - like our personal lives - are more open and transparent and we forget that at our peril.
Bob, thanks for a great post.
See also http://bigthink.com/ideas/29598
By Scott McLeod on
6/7/2011 10:53 AM
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Who has the Right? by Bob Sprankle
I use a Livescribe pen (see http://www.ictineducation.org/home-page/2010/4/6/review-of-the-livescribe-pulse-smart-pen.html). If I am using the REcord function when in a meeting I usually check that is OK with people. However, even without using the Record function it is useful to use because once you have uploaded the notes from the pen (a) it doesn't matter if u lose the notebook itself and (b) you have a digitised, and searchable, version of your notes.
Returning to the Record function, I've never met anyone who objects to my using it; probably that is because they know and trust me and my motives. If so, I think although the legal issues you raise are interesting and important, there are wider issues also, about how you build integrity and establish trust.
By Terry Freedman on
6/17/2011 10:32 AM
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Who has the Right? by Bob Sprankle
A few quick thoughts. Intellectual property doesn't enter the picture because if it did, then one couldn't take any notes by pen or pencil at all in a classroom or at a conference. IP/copyright might enter the picture depending on how or whether those notes were disseminated to others.
Not everyone can take verbatim notes, but for those who know shorthand, there would seem to be little difference between complete shorthand notes and an audio taping.
Although one must follow the law, I can't see any ethical problem in taping any conversation at which people do not object to others taking notes by hand.
Although there may be some exceptional circumstances warranting another position, it would seem to me to be unethical in most cases for a teacher to forbid using a LiveScribe pen. The purpose of taking notes, whether manually or by audio, is to learn the material, which aligns with the mission of any course or school. Even a 3rd grade student had the common sense to understand that.
By Charles on
6/18/2011 12:14 AM
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