1. E-Liability: Teachers & Technology May 22, 2013 Livingstone Range School Division Technology

2. Important Backdrops to Topic: School Act & other legal implications Duty of Care responsibilities for Teachers Teachers’ rights as private citizens balanced off by the duty of fiduciary responsibility to employer School district policy

3. Laws PROVINCIAL School Act, 2009 – new Education Act still underway Northland School Division Act Child, Youth & Family Enhancement Act (previously Child Welfare Act) Teaching Profession Act (Code of Professional Conduct) Young Offenders’ Act Human Rights, Multiculturalism and Citizenship Act Domestic Relations Act Provincial Court Act Alberta School Boards Association Act Teachers’ Pension Plans Act Certification Regulations FEDERAL Criminal Code Youth Criminal Justice Act Charter of Rights and Freedoms Freedom of Information and Protection of Privacy Act (FOIP) Personal Information Protection and Electronic Documents Act (PIPEDA) Bill C-11 Copyright Act LOCAL School Board Policy School Policy/Practice

4. Alberta Public Schools take Legal direction from the SCHOOL ACT (Province of Alberta) November 26, 2009 This act is under review and will be acclaimed (perhaps this spring) as the Education Act

5. Duty of Care Everyone has a duty to conduct himself in such a way so as not to harm others. In order for a liability to arise it is necessary that the harm caused and the person injured should have been reasonably foreseeable. If it is foreseeable that someone might be harmed, it is necessary for that person to take whatever steps a reasonable or prudent person would take to avoid injury. Principle of In Loco Parentis ↓ Education Statutes (School Act) ↓ School Board Policies Regulations Job descriptions ↓ Administrators ↓ Teachers (as "careful parents")

6. Prohibited Activities (School Act) 27(1)No person shall (a)disturb or interrupt the proceedings of a school, (b)disturb or interrupt the proceedings of a school meeting or board meeting, or (c)loiter or trespass in a school building or on property owned by a board. (2) No person shall canvass, sell or offer to sell goods, services or merchandise to a teacher or a student in a school without the prior approval of the board.

7. Criminal Code––Assaults 264.1(1) Uttering threats – Everyone commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat (a)to cause death or bodily harm to any person; (b)to burn, destroy or damage real or personal property; or (c)to kill, poison or injure an animal or bird that is the property of any person.

8. Criminal Code––Assaults 265.(1) Assault – A person commits an “assault” when (a)without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (b)he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or (c)while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.

9. Assault: Common Assault Touching or threatening to touch another person without the other person’s consent Includes a mental element––there has to be a conscious thought leading to action ie, not accidental

10. Criminal Code Section 43 Teachers are always in a position of trust and authority (duty of care – loco parentis) in relation to students This position of trust extends beyond the confines of the school & into cyberspace Section 43 of the Criminal Code – as a protection – applies only when force is used as a means of discipline—cannot be administered out of anger or malice and only applied as a means of correction challenged by Canadian Civil Liberties Association

11. A huge & emerging area of concern for teachers & administrators is the impact of Technology on teacher work life….. That is what we will talk about in a snapshot overview

12. Teacher Use of School District Technology & Possible Employment Impacts Arbitration and court decisions have long established that employers have the right to monitor employee use of technology and to discipline for inappropriate use

13. There is NO reasonable expectation of privacy as the technology is provided for work use School district investigations have accessed: all email correspondence all sites visited on the internet copies of all materials downloaded the specific date/time & length of time individuals were online at sites

14. R V Cole: Employee Privacy (2012) Cole was a high teacher in Sudbury, Ontario given a district laptop to help him teach communications technology Also a domain administrator; duties included monitoring & policing student activity on district network

15. Cole accessed a student’s email…. Found nude photographs of another student (a minor) in sexually explicit situations Cole copied the photos onto his district owned laptop; saved in a hidden folder Did not bring them to the district’s attention

16. Technology Sweep…. Computing consultant found hidden folder and advised Cole’s principal – who asked Cole for his laptop and password Cole turned over the laptop but refused to divulge password––however consultant was able to perform an intensive search

17. Contents of Laptop Laptop contained a large number of pornographic images in temporary internet files; as well as explicit images of students Principal turned over laptop to police Police searched the laptop and a disc created by consultant without obtaining a warrant

18. Cole was charged …. Cole was charged with possession of child pornography & unauthorized use of a computer Cole argued that the evidence on the computer was obtained in violation of Section 8 of the Charter which guards against unreasonable search & seizure

19. Evidence & How it was Obtained Cole argued that the evidence should be excluded and the Court of Appeal ruled in Cole’s favor – saying he has a reasonable but diminished expectation of privacy in the contents of the laptop The actions of the district were found to be reasonable but the police actions were not

20. Personal Use Agreements District policies should clearly outline personal use for teachers and these can diminish the reasonable expectation of privacy Teachers who use their laptops for personal use should be aware of this and operate accordingly

21. Laptops/Computers District owned laptops/cellphones/tablets (any devices) the same principles apply Districts can reproduce the same information from the laptop – once it has docked on the main server Deleting emails or erasing online histories will not remove this material from the employer’s scrutiny Materials will be on main server Numerous “techies” believed that they had removed all tracks! Footprints can generally be found in a forensic audit

22. Email: Teacher Use Only email what you would want others to read Treat email like a postcard – same level of privacy In addition to employer s reading email, others can read the material. Email is NOT a secure medium/can be forwarded/blind copied, etc, downloaded and used against you No personal /sensitive or complex information should be included by email Member Services will not receive emails for advice (initially) which deal with employment sensitive material

23. Email: Teacher Use Email is a legal document like a letter; yet conventions of language often relaxed/ sense of audience is different – more private/less formal If something is time sensitive/ if you require a response do not rely on email alone – follow-up Remember that confirmation of receipt tracking does not mean that the individual received the email – follow up

24. If someone’s message angers you, stop using technology, take a break & perhaps respond in another medium (ie face-to-face, telephone) STOP the escalation!

25. Internet & Teacher Use Possible Employment Ramifications Sites visited or material downloaded: restrict to materials you would be comfortable with other’s knowing about If you want sites visited or materials downloaded to remain private—do not use school equipment Increasingly, in addition to disciplining employees on the basis on content of email or internet use, employers are looking at “theft of time.”

26. 24/7 Accessibility Greater use of technology in communication between schools and homes creates increased expectation that teachers & administrators are available any time ANYTIME/ANYWHERE/ANYPLACE Perception increased by standard email addresses make access with teachers easier ie teachername@schoolname.ab.ca student homework assignments listed online student assignments/marks posted online with passwords

27. 24/7 Accessibility This connected reality is creating many problems in teachers’ work lives in terms of boundaries Expectation of immediate response Stress caused when responses are reactive – not proactive Expectation that student assignments and mark calculation will be completed immediately & posted Dangers of violating FOIP if material is not fully encrypted or password protected

28. Social Networking & Teachers Incredible potential risk for boundary Issues Increasingly teachers (some younger colleagues but not exclusively) are connecting with students through social networking Chat Rooms, Facebook, Texting Blogs Email communications Less formal interactions create risks for boundary crossing Less formal language Venture into topics generally not discussed in the classroom Sharing and requesting of private information Feeling of immediacy/privacy/almost intimacy

29. Social Networking & Teacher Boundary Issues Departure from the usual teacher-pupil classroom relationship Teachers need to be more judicious online than in the classroom Comments made orally are open to interpretation after the fact Cannot always establish what was said or the full context BUT A “slip of the finger” online can be viewed repeatedly and used against teachers. Both the statement and the context can be viewed & misconstrued

30. Code of Professional Conduct The Code of Professional Conduct is still in effect online; therefore treating pupils with dignity and respect and showing consideration for their circumstances (4) & upholding the honour and dignity of the profession (18) are Professional Expectations

31. Section 13 & 14 of the Code Section 13 – Verbal comments about a colleague’s professional competence or reputation must first be made to them & then only to proper officials – no one else Section 14 – Written comments about colleagues must first be shared with them and after – only to proper officials & include reasonable time between the communications

32. Free Speech Issues–Students Generally schools have a legal right to censor student publications or posting if they are produced as part of the curriculum or on school equipment Schools have significant latitude given their role in maintaining order and discipline in the school o Schools can monitor student use o Can discipline students for inappropriate use o Can remove inappropriate postings However, student postings at home are more complicated

33. Student and Parent Use of Technology Courts generally hold that legitimate comments of students & parents about the schools and its school staff ought to be accorded a degree of deference Notion of “Qualified Privilege” or “Fair Comment” – negative comments are not necessarily defamation or slander or mischief

34. Student and Parent Use of Technology Such deference not likely to extend to truly defaming comments, outside of comments about effectiveness of program or programs, which both intend and do cause harm comments which cause a significant disruption to the school’s ability to operate threats of safety or security of the school or any member of the school community

35. While free speech & fair comment is a consideration, schools need to consider other interests: Need to protect school decorum and the reputation of staff Maintaining a safe school environment for both students and staff Protect students from bullying, including cyberbullying While it is difficult to pursue matters through the courts for defamation, schools can take disciplinary action if student postings create a safety issue for students or staff

36. Student Use–School Act, Section 24 A principal may suspend a student if in the opinion of the teacher or principal (a) the student has failed to comply with section 12, or (b) the student’s conduct is injurious to the physical or mental well-being of others in the school (c) Teacher suspension – 1 period, Principal – Longer period of time Ontario College of Teachers: 84 per cent of Ontario teachers say they have been the subject of comment by cyberbullies.

37. Student Use Several Alberta students have been expelled from specific schools or a school jurisdiction for their actions against teachers outside of school While these cases did not involve technology, the same principles apply

38. Manitoba Incident (2006/07) Manitoba “Facebook” case covered extensively by media Teacher was criticized and mocked by student participating in online dialogue: criticizing his clothing, mocking his interests and false allegations about serious illegal behaviour

39. Student Use Swift action was possible as the participants were known as they had to sign in Finding participants generally more difficult to ascertain and require requests of site provider to remove the postings The matter was not pursued after the postings were removed If postings are defaming, a defamation suit is possible. Defamation needs to go beyond qualified privilege (like or dislike) to both intended harm and actual harm to the individual Very recent cases in the education sector support this

40. Student (Parent) Use Newman v Halstead (British Columbia, 2006) Award of $676,000 for defaming nine teachers, a former school trustee and a parent. Website included page of “Least Wanted Educators,” names and pictures of teachers purported to have committed crimes a page of “Bully Educators” and names and pictures of teachers deemed to have bullied the Defendant.

41. U of C Pritchard twins: Made negative comments about their professor & the ineffective way in which she taught their law class Both law students were disciplined by U of C & had disciplinary consequences Appealed to the courts – first court upheld U of C’s actions; all the way up to the Supreme Court

42. Decision was overturned It was found that their comments fell within a reasonable range of comment about the program; should not have subjected them to disciplinary action At the universities – free speech is likely more protected than for students in public education – but implications are still there

43. Teacher Free Speech: Not Absolute as a Right Teachers owe a responsibility of loyalty or fiduciary responsibility to their employer Not free to go online and publicly criticize their employer or decisions made by the employer Not free to appeal to trustees – media – should follow proper protocol – Code of Conduct

44. Teachers & Free Speech Teachers do have the right to free speech but this is balanced with an obligation of loyalty to employer Teachers also have an obligation to adhere to the Code of Conduct – Teaching Profession Act Be careful of positions you espouse online

45. Smart Advice: In School Keep password secure Never allow access to anyone – colleagues, student, family members Be aware of district policies & follow them Laptops – home use/personal use – be prudent/careful

46. Smart Advice: In School School policy is your law regarding technology Arrange computers in classroom so that you can readily supervise Conduct personal business/use on home computer – on your own time

47. Use the District’s Website To create class pages or classroom applications do not use Facebook or other social networking sites unless sanctioned and clearly understood Before using social media in your classroom – you must get informed consent from parents; they may not want their child using Facebook or Twitter

48. Technology with Parents Teachers have a unique relationship with parents of the students they teacher: it is a professional relationship – do not blur the lines, ie Friending all parents Teachers can exert control over their workday by not responding to parental emails outside of working hours

49. Technology with Parents Remember to be professional in all of your communications – avoid slang as this reflects poorly upon you and your profession Email is not the only way to respond to parental emails: especially on topics of complexity or potential misunderstanding

50. Technology with Parents Telephone conversations and in person meetings are far better vehicles to resolve issues – in all cases Keep copies of any harassing or negative communications Do not respond in kind and do not delete anything

51. Social Media Facebook & Twitter are great resources The ATA does not tell teachers to shun social media; however teachers should be aware of the following recommendations for their presence on social media sites

52. Social Media Recommendations Never friend students or their parents on Facebook, follow them on Twitter, be in texting relationships Keep your relationship professional and outside your own social media world Observe appropriate professional boundaries

53. Posting Pictures Post only images on social media, blogs and websites that you would be comfortable displaying in your classroom Ensure your friends and family understand that posting pictures of you can have implications professionally

54. Social Media Recommendations Ensure that your social media privacy settings are always set to the highest level Pseudonyms do not work. They do not protect your identity or privacy Do an online search of your own name from time to time – you do not know what may be out there with your name attached

56. Cyberbullying in the News: Story of Amanda Todd Death of 15 year old from Port Coquitlam, BC triggered a national debate about bullying on internet Amanda’s unfortunate online actions, encouraged by a 32-year-old Vancouver man ended in tragic circumstances

57. Cyberbullying 43% of Canadian teenagers have been victims of cyberbullying Public consensus is that Amanda Todd made a mistake by exposing her breasts on the internet – but according to a Plymouth University study – 80% of respondents, aged 16–24 used a smartphone for a sexual purpose

58. Cyberspace…. July Telegraph, Cover Stroud writes that “half the teenagers interviewed had some experience with cybersex” Webcam voyeurism Roleplaying & virtual sex exist in many online games & other applications

59. 1:5 students have cyberbullied Recent Consumer Reports study found that 7.5 million children with Facebook accounts were younger than 13 which is supposed to be the age of use 87% of children surf the internet without parental rules or supervision

60. Accountability or Vigilante-ism? An Airdrie woman who found an offensive posting on one of the Amanda Todd memorial sites took action which led to the writer being terminated Main reason? Writer used his employee email to post the information – which was inappropriate – regardless the comment

61. Another teenage girl, Rehtaeh Parsons, 17- years-old, died Sunday, April 7, after attempting suicide. This was after a picture of her “having sex” was widely circulated on the internet.

62. The federal government is now committed as are all stakeholders to take this type of bullying more seriously and hold the cyberbully responsible

63. The following slides are from the presentation: Addressing Cyberbullying in Our Communities, Schools and Campuses–Appropriate Online Conduct and Digital Citizenship given by: Betty-Jean Aucoin, Executive Staff Officer Nova Scotia Teachers Union

65. Stand up if you have ever… Sent a text you regretted Have discovered something about yourself online that you didn’t put there Have a twitter account Use Facebook on a regular basis Have read a post or text that could be considered bullying

66. Generational Differences Baby BoomersGeneration XMillennial TV Generation Typewriters Memos Telephone Video Games Computers Email Cell Phones with No Camera The Web Mobile Devices Text Messaging Facebook/Twitter Tumblr/YouTube Online Communities Virtual Video Games

67. Bullying Takes on Many Forms Five Suppression Techniques of Bullying Making Invisible Ridiculing Withholding Information Damned if You do and Damned if You Don’t Heaping Blame and Placing Shame Berit As, 2011

68. Five Myths of Bullying Most bullying now happens online. Bullies are bullies and victims are victims Bullying ends when you grow up. Bullying is a major cause of suicide. We can end bullying.

69. Taxonomy of Online Safety Physical Safety: freedom from physical harm. Psychological Safety: freedom from cruelty, harassment and exposure to potentially disturbing material. Reputational and Legal Safety: freedom from unwanted social, academic, professional and legal consequences. Identity, Property and Community Safety: freedom from the theft of identity and property.

70. Cyberbullying Cyberbullying is a form of bullying and occurs Through the use of technology. This can include the use of a computer or other electronic devices, using social networks, text messaging, instant messaging, website, email or other electronic means.” A person participates in bullying if he or she directly carries out the behaviour or assists or encourages the behaviour in any way.” Simple terms…using online technology to hurt others!

72. Cyberbullying Methods Direct Attacks (messages sent to the target directly). Indirect Attacks/Campaigns (posted and public attacks designed to get the word out and humiliate the target). Cyberbullying-by-proxy (using others to help cyberbully the victim, either with or without the accomplice’s knowledge). Invasion of Privacy (spying on the victim or sharing their secrets). WiredSafety 2011

73. Different Kinds of Cyberbullies The Vengeful Angel–they think they are righting the wrongs, the Robin Hoods of cyberspace. The Power-Hungry–individuals who like to see their victims sweat and use intimidation. The Mean Girls – not always girls. They work in groups and attack reputations. The Inadvertent Cyberbully – they didn’t mean to hurt others, but were careless and caused hurt.

74. The Groundwork/Rules Everyone engaged in the use of technology represents him or herself as a Digital Citizen As a Digital Citizen you will: –Respect yourself –Protect yourself –Respect others –Protect others –Respect intellectual property –Protect intellectual property

75. Why Citizenship It’s protective Promotes agency, critical thinking and self- actualization Supports civic engagement Turns us into stakeholders Supports communities as well as individuals Connect Safety, Ann Coller

76. Citizenship Infrastructure Guidance Practice

77. Educate Educate Educate Stop/Block/Tell Good Password Hygiene ThinkB4uclick Take 5 Internet Golden Rule

79. Facebook: Safety Center https://www.facebook.com/safety#!/safety

81. There’s more… Much, much more …. but you can not learn all there is to know about e-Liability in one sitting Find a session at your Teacher Convention Go to our website www.teachers.ab.ca.

82. Need to Consult? The ATA has experienced staff available to assist you with confidential consultation in most areas of concern to teachers and principals Call the Southern Alberta Regional Office (SARO) in Calgary 403-265-2672 or 1-800-332-1280 And ask to speak to the Duty Officer