When Web monitoring isn't about privacy

Marc J. Weinstein

is a partner at Dilworth Paxson who represents publishers and sponsors of secure, high-stakes examinations

A storm of criticism recently rained down on test publisher Pearson Education after the revelation that it regularly monitors social-media sites for public posts that contain secure content from standardized tests it publishes.

When it finds material from its Partnership for Assessment of Readiness for College and Careers (PARCC) Common Core tests, Pearson notifies state education officials. They attempt to identify the individuals who posted the material. If students are responsible, they are instructed to remove the posts. Anti-testing activists, already knee-deep in their fight to reduce reliance on standardized tests to measure academic and teacher performance, have expressed outrage about Pearson's monitoring, which they call "spying on kids."

PARCC tests are administered over a period of weeks across New Jersey, as well as in 10 other states and Washington, D.C. It is especially important to monitor social media for exam content when the same test is administered over a period of days or weeks or across time zones. Students who see exam content before they take the test obviously have an unfair advantage over others, and responses to such questions are not a valid measure of their knowledge. If a sufficient number of questions are exposed, test results are stripped of fairness and validity and are rendered meaningless.

It is a complete distortion of the issue to cast Web monitoring as a student privacy issue. The phrase spying on kids may have emotional appeal, but it improperly suggests that those posting exam content online deserve privacy protection. To the contrary, kids post on social media to instantaneously share their thoughts and content with the entire world. Therefore, no student's privacy is at risk as a result of monitoring of social media. "Student privacy" is a smokescreen for improper conduct that not only invalidates test results but also violates copyright law.

Many activists mistakenly assert that no laws prohibit students or parents from publicly posting images or descriptions of secure exam content on social media. Indeed, some have suggested that such conduct is an appropriate form of civil disobedience to protest testing. They claim that neither parents nor students are legally bound by any agreement to maintain the confidentiality of test contents.

Though parents and students do not enter into confidentiality agreements for state tests, all major assessment publishers obtain registered copyrights for the contents of their exams under U.S. law. Test publishers retain the exclusive right to copy and distribute their assessments and their contents, and doing so without permission or license is a copyright infringement.

In other words, photographing any part of a copyrighted secure exam and posting it on the Internet amounts to copyright infringement. Moreover, the copyright statute does not limit infringement claims to photographs and verbatim copies. Courts have long held that distributing substantially similar secure content reconstructed from memory also constitutes copying, and those who do so may be liable for direct copyright infringement.

In addition, courts have expanded copyright protection to allow claims against any person who intentionally induces, causes, or materially contributes to the infringing activity of another. Thus, if parents encourage students to post photos of exam content or substantially similar recitations of content on social media, or parents post content received from students who took the exam, they may be liable for contributory copyright infringement.

Activists should understand that no matter how upset they may be about various aspects of testing, it is irresponsible to suggest that people can act with impunity to distribute secure test content on the Internet. The basic principles of copyright law establish significant legal protections for secure examination content. Far from a privacy issue, Web monitoring is about ensuring the fairness and validity of tests, and enforcing the copyright protections afforded to publishers.