Who’s Watching Me? Online Learning in Pandemic Times

October 27, 2020
Office of Legal Affairs
Who’s Watching Me? Online Learning in Pandemic Times


The onset and spread of COVID-19 has hastened higher education’s adoption of virtual teaching, raising with it a number of novel privacy, security and technology issues.  It is all enough to bring to mind the lyrics of Rockwell’s 1983 pop music hit, Somebody’s Watching Me (“…I always feel like somebody’s watching me, and I have no privacy, oh, oh…”).

Although the US Department of Education, and other regulators, have generally shown flexibility towards the increased use of online courses in response to the current pandemic, all privacy laws, including the Family Educational Rights and Privacy Act (FERPA), carry potential penalties for non-compliance.  As we head into what is likely to be the third straight academic session of mostly remote learning, it is thus wise to take stock of some of these issues and develop best practices to effectively address the same.  

While students retain their FERPA protections in the virtual environment, they do not have the right to be anonymous in online classes – be they live (synchronous) or recorded (asynchronous).  Consequently, it is perfectly legal to require a student to provide a name and/or email address for participation in an online course.

Subject to any applicable institutional or department policies, class recordings that do not contain student personally identifiable information (e.g., identifiable students asking/answering questions or giving presentations, etc.) may be re-used in a future course offering without obtaining consent or editing the recording.  Those that do include personally identifiable information may be shared with other students enrolled in the same course, although best practice would be to provide notice of such to the students, through, for example, a statement in the course syllabus.

The so-called “zoombombing” phenomenon – disruption of online meetings with threatening or other inappropriate messages – has wreaked havoc on many remote classes.  There are, however, many tools available to instructors to eliminate, or at least mitigate, the risk of zoombombing, including, using randomly generated meeting IDs, protecting meetings via passwords, enabling the waiting room feature to control meeting attendance, frequent monitoring of chats and settings, etc.

Like the classes themselves, tests and other examinations are, for the most part, being conducted remotely these days.  To preserve the integrity of such assessments, many colleges and universities have resorted to live proctoring services, such as Proctorio and ProctorU.  Although live proctoring is not unlawful or a violation of any constitutional rights, it is, once again, best practice to give students advance notice of the use of such technology in the class.

Instructors are also encouraged to be mindful of potential accessibility, personal safety and other such issues that could come up in the course of an online class, and seek guidance regarding possible solutions from the appropriate offices on campus (e.g., Student Disabilities Services, UTSA Police Department, Equal Opportunity Services/Title IX, Legal Affairs, etc.).  In the end, making use of the notices, resources and other best practices noted above will lead to a more productive educational environment and allay any Rockwell-like fears in our new normal.

- Jay Rossello

The contents of this article are intended to convey general information only, and not to provide legal advice or opinions.  Please contact the Office of Legal Affairs (210-458-4105) to obtain legal counsel on any particular university issue or matter.