EVOLVING POLICY AND RULES FOR INTERNET INSTRUCTION
Jack Loughary, PhD, Walden U
<loughary@darkwing.uoregon.edu>
James A. Pearson, JD, Attorney in Private Practice (Eugene, OR)
<pearson@rio.com>
Theresa M. Ripley, PhD, Walden U
<tripley@waldenu.edu>
INTRODUCTION
As the amount and kind of instruction delivered on the internet increases, educators will need to give more attention to policy and legislation regarding privacy and security. Some professional fields are in the process of defining and clarifying problems of internet communication, and others probably will follow. For example, the articles under the following titles appeared in recent legal magazines: "Legal Pitfalls in Cyberspace: Defamation on Computer Networks"; "Guidelines for Conduct On And Use Of The Internet"; "Privacy and Intellectual Freedom in the Digital Library." In another field, the American Psychological Association Ethics Committee has adopted a statement regarding "Psychotherapy by Telephone." In a related field, an internet forum titled "Counseling on the Internet" discussed what counselors thought was right and wrong about counseling in cyberspace. (These examples are not citations, but simply examples of the point being made.)
The internet policy, and rules-issues concerning the legal and psychotherapy professions, may appear to be more obvious than those related to delivering instruction, but broken contracts, claims of fraud, and invasions of privacy may not be as far around the corner in internet teaching as one might think. The reasons for this are unquestionably many and varied, but among them is the apparent invitation inherent in email for greater informality, frankness, and relaxing of conversational inhibitions than is usually the case in face-to-face and hard-copy communication. Relaxing the traditional social mores and controls can lead to legal problems.
The purpose of this paper is to illustrate how serious problems of policy and rules can arise in what was meant to be a straight forward learning/teaching situation and to stimulate discussion among conferees regarding what might be done about them. We decided that a critical- incident format might be an effective way to achieve our purpose. Three incidents have been developed using the following format. First a summary is provided of the incident, focusing on the perspective of the teacher involved; several questions are posed. Second, a teacher with internet teaching experience comments on the incident from a teaching perspective. Third, an attorney with particular interest in internet communication conveys his impressions of the legal implications of the incident. The paper ends with reflections by the authors.
CRITICAL INCIDENT ONE: FRAUDULENT PROMISE?
Half way through a 10-week for-credit course you are teaching on the internet, a student posts a message to you indicating that she believes the course has been misrepresented in your employer's announcement. Her specific accusations are that the course syllabus is inconsistent with the announcement description and thus does not meet her needs and expectations. In addition, the student claims that you have demonstrated your incompetence regarding both the subject matter of the course and your internet teaching skills. She notes that she has taken other internet courses, and that the instructional skills demonstrated by those instructors are lacking in this course. She ends by saying that she will contact your employer and demand that her $500 tuition be refunded and that she be paid $50,000 for the inconvenience the course has caused her.
To what extent are you responsible for responding personally to the student's accusation and demands? At what point should you involve or refer the matter to your supervisor? Imagine that you feel bad about the student's experience in the course. Does the legalistic nature of the student's concern effectively cancel out your acting on what you think are your ethical responsibilities? Can the incident be treated as both an ethical or legal issue? Is the issue of special teaching skills for instruction on the internet one that has any legal relevance or implications?
THE TEACHER RESPONDS
I am an instructor with 31 years of teaching experience and feel confident about my teaching abilities, both live and on-line. Others might have different professional assessments because of their own experience or lack of same. If this incident occurred to me, my professional stance would be to get my case together. I would run (by email) to my immediate supervisor in the institution and provide a copy of the student's email. It would be important for the supervisor to know precisely the student's complaint and intentions. In the email, I would say that I am gathering all relevant data in case a suit is carried forward. I would then gather my class syllabus, my weekly postings to the class, and the responses (or lack of same) from the student. I would also be mentally gathering references regarding my teaching abilities and be thinking of colleagues and past students who could attest to my teaching skill both live and on-line.
At this juncture, if a student had threatened a suit, and believing I was an effective teacher, I doubt if I would have much sympathy for the student and his/her feeling about the course. He/she has pushed the issue way beyond that. I would more likely be concerned for myself and my own career!
THE ATTORNEY COMMENTS
This case involves a claimed breach of contract. There appears to be no issue of physical damage to person or property. The claimed misrepresentation of fact probably involves only the institution directly. The student probably lacks the experience to testify concerning the competency of the teacher or the skills of other instructors. Any claim for "inconvenience" would probably fail unless such damages had been contemplated by the parties.
The teacher is an employee, and as such should report the occurrence to his or her superior immediately. Allegations of incompetence impact the employer as well. Further dealings between the teacher and the student are dangerous to both the interests of employer and employee. Efforts to solve the ethical questions could prove to have disastrous results in the legal arena. Special teaching skills have not as yet been introduced as a condition precedent to internet teaching. That will come in time, most probably from legislation or administrative rules by educational professionals.
CRITICAL INCIDENT TWO: HARASSMENT ON THE INTERNET
A student in an internet personal psychology course begins to post personal issues on the course list server. At first, these are in the context of class discussions topics. Soon, they become obvious attempts to have other students attend to the communication and sexual problems he is having with his wife. He especially wants the instructor's advice regarding solving his intimate marriage problems. The instructor posts a reminder that the personal concerns he is raising are not legitimate concerns of her class, and that he should refrain from raising them. The following day the student sends an email message to the instructor's personal email address. He notes that he has great admiration for the instructor's ability and warmth, and that she is one of the few people with whom he can discuss his personal problems. The instructor returns the email message, indicating her unwillingness to communicate with him about his personal problems. Nevertheless, the student continues to send her one or more email messages a day for the next week. The messages contain explicit descriptions of his marriage problems.
What options are open to the instructor? At this point, she believes she is being harassed by the student and is willing to take whatever steps are necessary to force him to stop the harassment. Did her responding to his personal email compromise her legal position? Is she correct; i.e., can she be criminally harassed by email? What alternatives does she have for dealing with the situation?
THE TEACHER RESPONDS
As an instructor, I would have concern for myself and for the student. For me, I would clearly and directly inform the student that his behavior is inappropriate and to stop it immediately. I would save copies of his email and my email replies to him. I would then inform at least one colleague of what has transpired. If content of the emails seems more serious, I would contact a higher level administrator as well.
I would also have concerns for the student. I would state that I think it is appropriate for him to consider seeking assistance for his concerns. I would then suggest he contact local resources of support and provide suggestions of how he might do that. But I would make it clear in this message that I was not a source of counseling or support at this time because the dual role of teacher and therapeutic counselor would be inappropriate.
THE ATTORNEY COMMENTS
The issues include federal jurisdiction versus state jurisdiction. And the jurisdictional answer is probably somewhere in between. The internet will probably go the way of the telephone, with concurrent jurisdiction. And email is a part of the internet. Criminal harassment is a late 20th century phenomenon, due mainly to societal changes. Its definition varies from state to state. But it usually involves some threat of bodily harm, which is absent here. An overworked District Attorney is not apt to get involved in an email harassment case that might entail a costly misdemeanor extradition.
The teacher is doing the right thing. She is remaining firm and refusing to go along. But her options are limited. She wants the personal contacts stopped, and the unwelcome contacts may put the course at risk of being halted. She should report the developments to her superior.
There is criminal harassment by telephone. Can that be stretched to cover email? Or is new legislation needed? The teacher probably should not contact the problem student again outside of the class format without the knowledge and consent of the superior.
CRITICAL INCIDENT THREE: CONFIDENTIAL INFORMATION
During a course in Ethical And Legal Issues in Social Work, the instructor posts an assignment to the course list server directing students to provide examples of interesting cases. As is the nature of list servers, the instructor and all students in the course have the capability of posting to it and retrieving all posted messages from it. The students are all employed as case workers in several states and have access to real case information. One student posts an example of a case of child abuse. The student/case worker believed that the case notes he posted had been sanitized. However, not all of the confidential information had been removed and, inadvertently (the student claimed) the names of the accused and victim were revealed in the posting. They were uncle and niece, respectively. The student and instructor live in different states. When the instructor realized what had taken place and that the information was available to all members of the class, she posted a message to the list server stating that a mistake had been made and that they all should delete the message in question and under no circumstance reveal the information. The instructor also sent a personal email message to the student in question reprimanding him regarding an error in judgment or carelessness. The student replied to her stating that he was simply completing a course assignment, and that, further, the main responsibility for any wrong-doing is that of the instructor who made the assignment. Reporting child abuse information to proper authorities is mandatory in the state in which the instructor resides.
How would you sort out the confidentiality issue, or is it even relevant at this point? What ethical and legal issues are relevant to the student, other class members, and the instructor? Is the incident essentially an accomplished fact that should be forgotten, or is follow up of some kind needed or required? Ever consider going into retail sales?
THE TEACHER RESPONDS
As this incident is written, there are many things to sort out. The most important issue probably is that of reporting the child abuse, since now all 50 US states require that of people in human service work. As the instructor for this class, I think I can safely assume that the case had been reported, since this is from case notes of a case worker. If the case was in the worker's file, that person was under obligation to report the case. There is no reason to believe that reporting did not happen.
The second issue, equally important, is that now all students in the course are privy to this case. I honestly would not know what to do about that one, and I would consult with colleagues. As an instructor or counselor, I have always found the best course of action is to involve others when appropriate. This is one of those times. I also would contact the institution's attorney to see if there was any legal recourse against me and my institution for negligence on my part. Then, finally, I would make certain this never occurred again and that I was ever so clear in instructing course members from the beginning of classes about how and what to put on the internet.
THE ATTORNEY COMMENTS
Privilege is a statutory matter, and will vary from state to state. Confidentiality is a professional matter, and has more uniformity within a given group. The student may have a breach of privilege or confidentiality problem with the uncle and niece. The uncle may have all sorts of family and employment problems because of the breach. And the niece may have additional physical and social problems. The student is probably asset poor. The teacher the same, possibly to a lesser extent. So the teacher's employer looms large as the party most capable of responding in damages. Will the parties look to the pre-internet law, or attempt to paint on a clean canvas?
The statutory reporting requirements probably only apply to abuse taking place in that state. But the requirements are broadly interpreted, and so everyone should report it in their state just to be safe. But that is another publication of the facts. If the reporting student is protected by the statute, is the employer-institution also protected? There will be three distinct areas of culpable activity: the student, the teacher, and the employer-institution. Will the uncle and niece do nothing? Can the employer-institution ABSOLUTELY prevent this from happening again in the future? Not Likely.
Perhaps a few general thoughts on the givens of the playing field might be helpful. The employer is usually an institution of learning, either public or private. There may be statutory limitations on the time within which to bring a suit, limits on how much may be recovered by way of damages, and notice requirements to the learning institution within a certain time after the occurrence.
The teacher is an employee of the institution of learning. The teacher on the internet probably does not have a history of acquaintance with the student, but nonetheless, the teacher is still perceived by the student as an authority figure. The student may have a natural reluctance to create a problem that may reflect poorly on the teacher. It will be difficult for the student to press his or her claim against the institution without involving the teacher. The student usually has limited financial resources.
The student is usually young, and compares poorly with the teacher and the institution in experience in the subject area and the field of education generally. The student is more apt to be in a transient mode, especially as a young adult, and is handicapped in the litigation arena for that reason. He or she may be subject to peer pressure not to let the distraction of an occurrence interfere with the general goal of an education within a prescribed time frame. The student knows that his or her performance at a particular institution may cause other institutions to temper their enthusiasm for welcoming such a student.
While all these points may not always exist in every student-teacher-institution conflict, even just some of these points may be sufficient to turn the players in a less litigious direction. Also lurking is the issue of deep pockets. The institution has them and the student doesn't. Insurance may not exist, and usually insurance may not be mentioned before a jury. Juries are historically reluctant to bring in verdicts of great consequence against public institutions and educational institutions. Litigation, win, lose or draw, is expensive and time consuming. It has long been said that "lawyers are the only ones who usually make money at the courthouse."
REFLECTIONS
THE TEACHER: The three incidents posed have been interesting to contemplate, but the issues most instructors will deal with will not involve openly legal issues on a regular basis. A related issue encountered by instructors on the internet might be validating authorship of course work. Did the student who enrolled in a class do the work? Internet instruction leads to a great deal of privacy for the student. So much so that the instructor might wonder who is doing the work. When one teaches face to face you develop instincts to know if the student is doing the work assigned or the paper submitted. On the internet you might wonder. Of course this has always been a problem with distance learning, but it surfaces again with internet instruction.
We want to avoid the possibility of internet instruction being seen as a second-class means of instruction. For many it already has that connotation. At one respected traditional institution, the registrar has been instructed to "flag" distant learning courses on a student's transcript. The flag is to represent danger, that is danger of being "different," or to skip the euphemism, "inferior."
So, yes, internet instruction is different and it will be up to the internet instructors and institutions to give the system the air of respectability. I am not suggesting that we have student fingerprints attached to keyboard scripts, even if that were possible, but we must devise methods and procedures to assure that the registered student is doing the work. When I took distance learning classes in the early 1960's, instructors simply trusted that I was doing the work. Our U.S. society trusts less since the 1960s. It behooves those of us in this new instructional mode to consider these issues and act on them together.
THE ATTORNEY: The internet is a late 20th Century happening. It continues to change daily as it becomes more entwined in society. Dealing with the internet both from an educational and legal standpoint is a movable feast. Those of you gifted with great imaginations will lead the way. And you will probably suffer the most. Economics will play a major role in plotting the course of the internet. The institution has a protective umbrella over the teacher and the student. It is involvement of uncertainty outside the umbrella that will create major uncertainty for the institution. Uncertainty like the uncle and the niece in Critical Incident Three. The players are best suited to form the rules, or laws, of the internet. Statutory aid will come slowly, and may be so political as to be counterproductive. But, over-regulation will stifle the very creativity the internet fosters. And innovation should always be present. Palimony? Surrogate mother? Cryptography? Internet? All are realities today without benefit of legislative creation. If interested groups establish rules and regulations, and follow them, the legislative process becomes less politically driven.
THE ORGANIZER NOTES: Organizing this paper has reinforced the idea that speed and power are often characteristics of internet-based instruction. The overall learning process on the internet is rapid.
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