Surrender and retain

November 2013


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The new Education Amendment Act will allow teachers to search and seize student devices in order to hold perpetrators of cyber bullying to account, but student privacy issues prove to be a sticky issue. By JUDE BARBACK.

I hadn’t heard of the social networking website until I heard of British teenager Hannah Smith’s taking her own life because of anonymous abuse received through the site. When the news spiralled over here and Kiwi parents began voicing their concerns about as well, out of sheer morbid curiosity, I decided to take a look at the controversial site. And sure enough, there it was, cluttered with Kiwi teenagers publicly answering all manner of questions from all manner of people, some known to them, many anonymous.

It didn’t take me long to find evidence of the ‘haters’ that must have driven Hannah Smith to suicide. Unsavoury and offensive comments concerning people’s appearance, promiscuity, and sexual orientation appeared regularly on most profiles from anonymous users.

Online watchdog Netsafe claims that cyberbullying of this sort is prolific in New Zealand, stating that one in five secondary school students report being bullied online or via text message.

Yet, they keep coming back for more. One parent of a New Zealand teenager remarked despairingly that the number of wifi hotspots and gadgets that can access the net make it difficult to prevent their children from accessing such sites.

This parent makes a valid point. The internet is ubiquitous and so very accessible.

The Bring Your Own Device (BYOD) initiative, in which students are encouraged to bring their own laptop or tablet to school, is largely thought to be a positive step for students’ learning. In March last year, the Ministry of Education renewed its 2009 agreement with Microsoft to supply schools nationwide with unlimited servers. Combined with the rollout of ultrafast broadband in New Zealand schools, there is a clear nod to internet accessibility for students.

But the darker side of BYOD is that it increases students’ negative online activity as well, and schools have been left wondering how exactly to cope.

The Education Amendment Act 2013, which passed in June this year, is thought to provide schools with an answer. The new act, famed largely for breathing life into the controversial partnership schools initiative, also gives teachers the right to confiscate students’ internet-capable devices to find evidence of cyberbullying if it is suspected. The new ‘surrender and retention powers’, which are thought to legitimise what is already being practised in many schools, come into play on 1 January 2014. The Ministry of Education is currently developing rules and guidelines on searches and the surrender and retention of property, in consultation with the education sector.

The Government is pushing hard against cyber bullying. In April this year, Justice Minister Judith Collins announced a raft of proposals that, when passed through Parliament, will effectively render cyberbullying illegal.

Under the new proposals , it would be an offence to send messages and post material online that is grossly offensive, indecent, obscene, menacing, or knowingly false. To do so could land the perpetrator in prison for up to three months or with a $2000 fine. It would also be an offence to incite someone to commit suicide, punishable by up to three years’ imprisonment.

But as younger teens can’t be imprisoned or fined, it is not surprising there is much support for the new laws to enable schools to seize and search students’ devices if cyberbullying is suspected.

However, the Act’s new surrender and retention powers have raised concerns over breaching students’ privacy. Regardless of what evidence of bullying might lie on it, the confiscated phone or iPad will likely contain other personal information belonging to that student. For example, while social media posts are generally fodder for all, emails tend to be more private in nature.

The Children’s Commissioner’s submission on the Education Amendment Bill warned that by granting surrender and retention powers to teachers could put schools in risk of breaching children’s rights. The submission highlighted grey areas of the bill, such as how long a device can be confiscated for and exactly what can be searched.

While the rules and guidelines are still being fine-tuned, it appears teachers are unlikely to be able to conduct blanket searches of a student’s electronic devices, or without their permission, although discipline can be used should a pupil refuse to allow the search.

A Fairfax digipoll conducted earlier this year, before the Education Amendment Act was passed, revealed that of 1317 respondents, just 14 per cent felt that to seize students’ personal technology was in breach of their privacy. The vast majority (just under 83 per cent) thought schools should be able to seize students’ phones and laptops if cyberbullying is suspected.

The surrender and retention powers might have snuck in under the radar somewhat, sailing quietly under the wings of the Act’s more controversial clauses. However, the changes look set to help teachers address a serious and growing problem that is happening under their noses.

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