Privacy Protections in Virtual Hearings

• By: Christine Simone
• On: 04/06/2020 17:37:53
• In: ASCA Chats
• Comments: 0

Even in this time of immense change, two constants remain-- compliance regulations don't have a pandemic rider and college students are just as creative as ever. These truths combine for a dramatic merger where conduct professionals seek to maintain their ability to uphold student rights and privacy via platforms that serve to inhibit them. 
 
Before we get too far into unpacking this Chats topic on maintaining privacy practices amidst technology takeover, lets revisit a few of the foundational pieces of advice all conduct professionals should recall when pondering how to move forward, not just in a time of major transition, but always.

• What does your code and written processes dictate? Do not deviate.
• What are the rules, regulations, and laws relevant to your location? Follow those.
• If available, what guidance has been offered by general counsel? 

Keeping those items in mind, know that elements of the conversation will most certainly not be relevant to all campuses and I caution that no major changes to procedures be implemented without thorough review and vetting by your relevant professionals. Ok, glad we got that out of the way, moving on. 
 
The abrupt shift to virtual environments meant little time to perfect the nuances of systems that were built to be in-person processes, leaving conduct offices to reactively adapt. Practices related to FERPA, HIPAA, advisors in conduct meetings, audio/video recordings of hearings, and file sharing were all drafted during a time when it was not perceived that in-person operations would be obsolete. If your campus did structure its entire operations around the possibility of an international health crisis, contact me so I can learn more about your time traveling abilities. 
 
There's an old adage that thinking you've seen it all is destined to prove you wrong. It's a particularly dangerous mistake when working with student behaviors and/or serving in an on-call rotation. The recent phenomenon of Zoom Bombing, if nothing else, serves as a reminder of the public's continued ingenuity and ability to use technology in new, albeit negative, manners.  
 
Now, as we determine how to maintain as much of the normal operating policies as possible by finding modern ways to replicate privacy practices, it can be easy to slide into the negativity of pointing out the flaws with each approach. But good faith efforts and due diligence have to be worth something, right?
 
Faced with cyber-security concerns and unable to meet face-to-face with students, hearing officers who participated in this Chat consulted with one another not only to share ideas, but to collaborate on additional considerations to each approach. The underlying constant striking change in these considerations is simple—hearing officers no longer can see the entirety of the meeting space and have had to yield a portion of hearing control to cyberspace. 
 
Below, I summarize the primary topics that gained the most attention during the calls, including the potential downsides expressed by those playing devil's advocate, for your consideration.
 
Access to student conduct records, such as case information and hearings, is limited to the student participant unless the student chooses to waive that limitation to further extend it to additional persons such as an advisor or family member. Huge overgeneralization, I know, but that's the main gist of how FERPA impacts the day-to-day work of conduct officers and serves as a precursor to the following.
 
Participants in the Process: In an on-campus environment, a student wishing to have records shared would typically be able to quickly sign this waiver in the conduct office or in an existing electronic format. Students who participate in hearings now often do so from their living rooms, kitchens, or other shared spaces where there's potential for persons not participating in the hearing to be privy to confidential conversation, whether intentionally or otherwise.  
 
It could be as simple as a sibling walking through the room in search of a snack or a curious parent who wants to be involved with the hearing with or without the consent of the student. In other cases, it could be another party to the case, advisor, or legal counsel. Though most of these instances would typically be permissible under current conduct processes, it is generally required that the institution receive advance notice in part to facilitate the FERPA waiver signature. 
 
Conduct offices are continuing to utilize the same guidelines and adherence to privacy laws, but with a heightened focus on communication of expectations and/or revised hearing protocols to address the unique challenges posed by a technology-mediated environment. Some institutions go as far as to ask students to turn their laptop or phone to pan the room to demonstrate there are no unapproved meeting participants, but do note that it would not prohibit the entry of a party after the pan and that this step would not be feasible with an audio-only meeting. Regardless of the fine details, there is no perfect approach only the aim to do our due diligence in upholding the student's privacy.
 
Case Documentation: Also related to FERPA, though institution-dependent, is the sharing of redacted case files during the hearing. Most who chatted on this topic were accustomed to provision of hard-copy files for review in a setting where staff can ask that students not take photos or otherwise record the documents. 
 
However, the mix of tech-savvy students with virtual meetings leaves conduct officers looking for the best manner of continuing to allow students their right to the information while limiting their ability to duplicate the data. As explained in some other chats and their subsequent posts, professionals have experimented with a number of secure document-sharing software options and reminded students of the expectation that they not screenshot or otherwise save these files which would result in additional policy violations. Sharing of these documents with others, including on social media, is a concern but not one that justifies significant deviation from typical procedures.
 
Consent to Record: As usual, state laws dictate the foundation for institutional practices around audio or video recordings of hearings. As a general rule, we know its best to operate under the assumption that we are always being recorded, but without the ability to see a student's surroundings outside of the range of a webcam, this advice is of additional importance. Whether or not the institution records still must be shared with the student and students must be informed whether or not they are permitted to record within this setting. 
 
Applying all of the typical privacy considerations to the remote environment calls for an abundance of communication with process participants and an ongoing commitment to maintaining usual practices to the best of the institution's ability. Written and verbal expression of student conduct expectations cannot prevent students from engaging inappropriately, just as writing a code of conduct doesn't block students from acting in opposition to the stated policies, but it's a start.  
 
 
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Want to join a future chat? Check out our schedule and register online. 
 
Have additional thoughts or recommendations on any of the questions/topics discussed during today's chats? Feel free to share in the comments.
 
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Any opinions, stated or implied, are those of the author and do not reflect the official view, position, or endorsement of the Association for Student Conduct Administration.


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