Expanding the Panopticon: Monitoring Social Media

            Most of us are old enough to remember a time when our peers were bold enough to demean or threaten us to our face or at least take the time to gossip face to face. Contemporarily, the internet has qualitatively and quantitatively amplified a student’s ability to “talk trash” and even make violent threats over the internet. Technology has not only made these threats and offensive statements more ubiquitous, but has also allowed students to make these statements anonymously.

            Yik Yak is a social media platform “that helps people discover their local community, letting them share news, crack jokes, offer support, ask questions, and interact freely. Its home to the casual, relatable, heartfelt, and silly things that connect people with their community.” One unique feature of Yik Yak is that it asks for virtually no private information to sign-up except a phone number. It also has a geolocation setting that ensures any Yik Yak posts that users see are from those within a five-mile radius

            Yik Yak has 3.6 million user, 98% of are “millenials.” It has exploded since its inception, leaving a wake of bullying threat and acts of violence. For example, in 2015, a student at the University of Missouri was arrested after made a post on Yik Yak in which he threatened to shoot every African-American on the University of Missouri’s campus. Also, in 2015, a student at Emory University was arrested after she posted on Yik Yak, “ I'm shooting up the school. Tomorrow. Stay in your rooms. The ones on the quad are the ones who will go first." These are just two examples of the growing cyberbullying and cyberterrorism epidemic. A national study found school threats increased 158 percent during 2014 from 2013.

           

            In response to the rise of school shootings and cyberbullying. Local school districts and universities have begun to monitor social media activity to identify potential threats. In Delkalb County, Georgia, employees track searches made by students and faculty on the district’s wireless network to identify potential threats. Other school districts have implemented apps that allow people to make anonymous tips about threats of violence. For a steep price, universities and school districts can use Hootsuite, Social Sentinel, and GEOCOP to effectually spy on students’ social media posts to monitor potential threats. These sites monitor social network activity within discreet geographic locations [geofencing] to track actual or potential violent threats in an effort to prevent school violence.

           

            The increased frequency of school violence and the prevalence of social media have caused the principles of free speech, privacy, and safety to collide. The United States Supreme Court, in Tinker v. Des Moines, held that both high school and college student enjoy free speech rights under the First Amendment protections. The Court, however, noted that these “schools may limit or discipline student expression if school officials reasonably conclude that it will materially and substantially disrupt the work and discipline of the school.” The rationale behind Tinker’s holding is that schools should be granted broad authority to execute their educational mission and to discipline students in accordance with those goals. Following Tinker, however, courts have recognized that Tinker’s proscriptions apply differently on high school and college campuses. The Third Circuit Court of Appeals has explained that “public secondary and elementary school administrators are granted more leeway [to restrict speech] than public colleges and universities.”

            The concern with monitoring social media posts within the context of preventing violent acts is not where the clash of safety, speech, and privacy is troubling. Indeed, courts seems to consistently hold that violent threats are not protected under Tinker and school administrators are permitted to enact discipline based on these threats. Rather, the tension seems to lie with a schools actual monitoring of social media posts. Moreover, this clash is also most prevalent with other forms of controversial speech and school’s decision to enact discipline based on that speech.

            The ACLU argues that a school’s decision to monitor social media fails to promote confidence and trust between the student body and school employees. These concerns, however, seem hypothetical and trivial in comparison to the real, concrete concern of school violence. Given there does not seem to be an efficient or practical way to monitor social media for violent threats without also monitoring other content, the concern for safety, from my perspective, must trump the ACLU’s ideological concerns about promoting trust. Although the actual monitoring of social media undermines a student’s privacy, both college and high school students have a diminished expectation of privacy while they attend a secondary or post-secondary public institution. Simply put, the safety concerns and social value of monitoring social media to curb violent attacks far outweighs a students’ expectation of privacy, especially when student already enter a campus with a diminished expectation of privacy. Certainly social media monitoring has the potential to chill speech that implicates the First Amendment, but it aims to chill violent speech, which enjoys no protection under the First Amendment.

            Although I am in favor a school district’s action of monitoring social media, I am in favor of California’s law related to social media monitoring. In California, a school or university must follow specific steps before implementing a social media monitoring program. These steps include providing notice to students and/or their parents or guardians, only collecting information that implicates school safety and the school must destroy the information it collects on a student within a year after that student graduates or turns 18. Similarly, Utah has enacted law that proscribes Universities from demanding that a student supply their social media credentials.

            Sites such as Yik Yak add another layer of complexity to this First Amendment calculus because even if a school is able to identify a potential threat, Yik Yak allows user to post anonymously. Thus, a more troubling and complex issue is whether schools may affirmatively take steps to identify students who make social media posts that contain discriminatory remarks based on gender and race. Under its current terms of service, Yik Yak will only disclose a person’s identifiable information if it “believe[s] it is necessary to investigate, prevent, or take action regarding illegal activities, suspected fraud, situations involving potential threats to the safety of any person…” Given Yik Yak only has its users’ phone numbers, a school would have to pursue other routes to identify a student who makes discriminatory remarks.

            As a result of this limitation, it seems more practical to ask to what end is the school seeking to identify a student who makes remarks that are discriminatory. Presumably, it would be to punish that student. This is where social media monitoring enters dubious territory, where it functions as avenue to curb student speech that potentially enjoys First Amendment protection. Such monitoring invokes a slippery slope that grants schools too much power to determine what type of speech is offensive and is not. The Third Circuit considered this issue in DeJohn v. Temple University. It reviewed Temple University’s sexual harassment policy that stated in relevant part “all forms of sexual harassment are prohibited…when ...such conduct has the purpose or effect of unreasonably interfering with an individual's work, educational performance, or status; or (d) such conduct has the purpose or effect of creating an intimidating, hostile, or offensive environment.” A student challenged this rule, arguing he felt it illegally interfered with his right to express his comments about women in the military. The Court ultimately held the policy was overbroad because it limited speech the First Amendment protects. The court explained “some speech that creates a hostile or offensive environment may be protected speech under the First Amendment. It is difficult to cabin this phrase, which could encompass any speech that might simply be offensive to a listener, or a group of listeners, believing that they are being subjected to or surrounded by hostility.”

            It easy to rationalize a school’s effort to punish a student for making comments on campus that are discriminatory in nature. Such speech collides with the right of student to remain free from harassment. However, a tension arises between speech, safety, and privacy when such discriminatory speech is made anonymously and off-campus. I am not in favor of a school pursuing the identity of anonymous, discriminatory speech because its chilling effect on others. When a school is willing to use time, money, and man power to effectually hunt down those who speak anonymously, it dissuades others from expressing controversial yet protected viewpoints. This is antithetical to a college campus which is supposed to be a “marketplace of ideas” where robust debate occurs. While I recognize there is little social value in discriminatory speech, as the DeJohn court noted, there is a degree of subjectivity in determining whether speech is discriminatory based on gender or race. When a college or university commits itself to leaving the campus boundaries to quell this speech, it harms the confidence and privacy of others to express their controversial yet protected view points. To be sure, the answer to this question may be different with regard to high schools, but it seems that identifying anonymous unprotected speech through social media monitoring comes at too great a cost to be justified.