Learning Commons: Learning Analytics: Intellectual Freedom, Autonomy Privacy, and Data Privacy

Chilling Intellectual Freedom, Autonomy Privacy and Data Privacy

If we accept that learning analytics, as an application of big data or data mining, constitutes a form of surveillance, what does that mean for free inquiry in higher education?

Data Privacy and Autonomy Privacy

The Electronic Panopticon (Richards, 2015)
Richards's 2015 essay on "The Electronic Panopticon" serves as a poetic reminder of what's at stake. In his words:

"Freedom of thought and freedom of speech are our most valuable civil liberties because on them depend our lifelong intellectual and emotional development and satisfaction. Sampling ideas, viewpoints, and aesthetics without being unduly judged by or associated with them are part of learning, maturing, becoming individuals, figuring out the world on our own terms. We need the free, unmonitored ability to think, read, and speak with confidants before presenting our ideas for public consumption.

That freedom is an idea with very old roots in our law and culture, and it is the basis for democratic self-government, individuality, diversity, and, yes, also the eccentricity, the vibrant weirdness, that often makes life so delectable."

[Note: We have Richards's book, Intellectual Privacy: Rethinking Civil Liberties in the Digital Age, in the library collection.]
Free to Be You and Me: Autonomy Privacy in Higher Education (EDUCAUSE Review, 2017)
In "Free to Be You and Me: Autonomy Privacy in Higher Education," Bermann makes a useful distinction between data privacy and autonomy privacy. Autonomy privacy is a precondition of the intellectual freedom Richards exalts in his essay (above), and refers to one's right to control one's social identity and reputation. Bermann asks,

"If we lose track of privacy in higher education, what does that mean for the rest of society going forward?"

Surveillance, Intellectual Freedom and the Chilling Effect

Uproar at Mt. St. Mary's (The Chronicle, March 2016)
Unfortunately, misuse of learning analytics is hardly theoretical. Mt. St. Mary's University in Maryland offers the compelling case of a plan to identify at-risk students and encourage them to leave the institution prior to third-week enrollment reporting:

"My short-term goal is to have 20-25 people leave by the 25th" of September, [university president] Newman wrote in an August 21 email to the provost, David B. Rehm. "This one thing will boost our retention 4-5%. A larger committee or group needs to work on the details, but I think you get the objective."

The dehumanizing effect of predictive, and prescriptive, learning analytics is incontrovertible in this case.
Learning Analytics: Ethical Issues and Dilemmas (Slade & Prinsloo, 2013)
Slade & Prinsloo of the Open University unpack ethical issues further in their article, "Learning Analytics: Ethical Issues and Dilemmas" (2013). (Slade and Open University are also featured in the Chronicle's Focus collection, "What You Need to Know About Learning Analytics.")

Scholarship confirms that being monitored - or being aware of the potential to be monitored - influences our behavior. Research on online information seeking since Edward Snowden's leak of internal National Security Agency documentation reveals that people are less likely to search for controversial (or simply embarrassing) information online -- correlational evidence of the chilling effect of surveillance.

Chilling Effects: Online Surveillance and Wikipedia Use (Penney, 2016)
Penney analyzes the chilling effect in his 2016 law review article, "Chilling Effects: Online Surveillance and Wikipedia Use."
The Harm in Merely Knowing: Privacy, Complicity, Surveillance, and the Self (Sloan & Warner, 2015)
In "The Harm in Merely Knowing: Privacy, Complicity, Surveillance, and the Self " (2015), Sloan & Warner take a broad view of surveillance, autonomy privacy, and the chilling effect.
The Dangers of Surveillance (Richards, 2013)
Richards examines the chilling effect through the lens of jurisprudence in his 2013 Harvard Law Review article, "The Dangers of Surveillance."
Surveillance-Industrial Complex (ACLU, 2004)
The 2004 ACLU report, "The Surveillance-Industrial Complex: How the US Government is Conscripting Businesses and Individuals in the Construction of a Surveillance Society," lays bare the public-private partnerships built around big data sharing and begs the question: if this report were to be updated in 2017, would learning analytics be included?
Uncovering the Data Panopticon (2013, Sullivan)
Sullivan issues a call to action for academics to investigate big data and surveillance in his 2013 article, "Uncovering the Data Panopticon: The Urgent Need for Critical Scholarship in an Era of Corporate and Government Surveillance."
Advocating for Intellectual Freedom (ALA, 2014)
Citing the Universal Declaration of Human Rights, the American Library Assocaition asserts that

"Intellectual freedom is a universal human right that involves both physical and intellectual access to information and ideas."

Disparate Impact

Surveillance doesn't affect its subjects equally; research reveals its disparate impact on minority populations.

Racial Surveillance has a Long History (Roberts & Vagle, 2016)
In an opinion piece for The Hill, "Racial Surveillance has a Long History" (2016), Roberts and Vagle discuss the evolution of structural surveillance in the US and the disproportionate risks and burdens it poses for some groups.
The History, Means, and Effects of Structural Surveillance (2016, Vagle)
Vagle outlines structural surveillance in his 2016 law review article, "The History, Means, and Effects of Structural Surveillance."

Whither FERPA?

The Family Educational Rights and Privacy Act protects the confidentiality of students' education records, defined as

"records that are 1) directly related to a student; and 2) maintained by an educational agency or institution or by a party or agency acting for the agency or institution."

FERPA protection specifically excludes records

kept in the sole possession of the [instructor]

maintained by campus security departments

maintained by physicians, psychiatrists, or psychologists, or other recognized para-/professionals

of directory information, including but not limited to "student's name; address; telephone listing; electronic mail address; photograph; date and place of birth; major field of study; grade level; enrollment status (e.g., undergraduate or graduate, full-time or part-time); dates of attendance; participation in officially recognized activities and sports; weight and height of members of athletic teams; degrees, honors, and awards received; and the most recent educational agency or institution attended."

FERPA has not been interpreted (by court decision or case law) with respect to its application to learning analytics data.

If an institution implements policies that extend FERPA protection to learning analytics data, this means that eligible students are afforded the right to inspect and correct this data. What are the implications of this policy approach to learning analytics?

Learning Analytics

Chilling Intellectual Freedom, Autonomy Privacy and Data Privacy

Data Privacy and Autonomy Privacy

Surveillance, Intellectual Freedom and the Chilling Effect

Disparate Impact

Whither FERPA?

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