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Keeping Children Safe in Education consultation

The Department for Education consultation closes today (March 11, 2022) on another revision of its statutory Keeping Children Safe in Education (KCSiE) guidance.

These updates should provide necessary clarity to schools, technology providers, and – most importantly – parents and children. But on the issue of safeguarding in schools technology there is only one question on Filtering and Monitoring systems

Question 29: Do you feel able to make informed decisions on which filtering and monitoring systems your school or college should use?

We respond to the consultation to address only this question. Although we have flagged areas of particular concern, where safeguards are lacking and the lawfulness of 24/7 monitoring or BYOD monitoring – there are many further issues that need addressed. We believe it needs a dedicated consultation.

The use of novel and often automated technologies of this sort, comes with a range of risks. In particular the risk of discrimination, and that machine learning  has the potential to amplify existing biases; and a lack of transparency – both in terms of students’ failure to understand what type of monitoring is taking place, as well as teachers’ ability to understand how new technologies operate.

The legal framework does not address circumstances in which such technologies should be used and the safeguards that should be employed where they are to protect children and safeguard their rights in law and in practice (e.g. mechanisms for addressing algorithmic errors or the need for human input when such technologies are used).

The statutory duties themselves do not contain any safeguards, the Prevent Guidance is silent on monitoring, and the paragraphs in the KCSIE Guidance (§122-130) are incredibly vague.

The legal framework fails to address whether out-of-school activity monitoring and profiling is ever lawful. It is unclear whether pupils and parents will have a reasonable expectation that monitoring pursuant to education providers’ statutory duties will take place before or after the school day, at weekends or during the holidays; all times at which education providers statutory duties do not obviously apply.

When a critical safeguarding keyword is copied, typed or searched for across the school network, schools can turn on the webcam capture feature to capture an image of the user (not a recording/video) who has triggered the keyword. This feature is common across different solutions in the sector but there is nothing in the guidance on the legal issues or safeguards here.

Our investigations indicate that parents are often uniformed of monitoring that goes on; something that is particularly important where young children are the subject of monitoring. Our 2018 survey (via Survation) recorded that 46% of parents were not offered any choice to have monitoring solutions imposed on their children. In the same poll, 37% of parents did not know whether their child’s school used monitoring and keylogging software (i.e. software that captures children’s search terms). Whilst over 80% of parents agreed in relation to keylogging systems that parents should be informed of which words are flagged and what the consequences might be for their child if their searches are flagged.

Monitoring is often outsourced to third parties. Over 300 school policies reviewed by defenddigitalme are not specific as to who may view images which have been captured by monitoring solutions. The images may be viewed by an undetermined and potentially unlimited number of persons within a school, its support services, or at the company contracted to carry out the service (including employees based outside the UK). The potential sensitivity of content and images captured should not be underestimated given the questions of the nature of monitoring on BYOD, and out of hours monitoring, which could feasibly include consensual conversations between older teens in sexual relationships. The legal framework in the guidance is silent on this issue.

In light of serious shortcomings with the legal framework, we consider the only viable way forward is for the Department for Education to commit to amending and/or providing further, new guidance, following a process of thorough engagement with stakeholders.

Download the consultation document.

Download our submission.