“I don’t like him, he’s a liar,” said then President of France, Nicholas Sarkozy, about Prime Minister of Israel, Benjamin Netanyahu.
“You’re tired of him; what about me? I have to deal with him every day,” replied President Obama about Netanyahu, unaware that his conversation with Sarkozy was being recorded.
Perhaps the mention of Sarkozy and Obama makes you yearn for a world order that seemed peaceful, where world leaders at least pretended to act with a sense of comportment. No, the question at hand is this: did Nicholas Sarkozy and Barack Obama have a reasonable expectation of privacy as they spoke at the 2010 G20 Summit in Cannes, France?
If you’re a world leader or hold public office, you probably have a very different expectation of privacy than a student at Skidmore College may. Presidents, prime ministers, heads of state, diplomats, and public officials must now be cognizant of the fact that conversations they have in public or private can be leaked or released to the public and make headlines. George Washington, John Adams, and Thomas Jefferson did not have this concern, where their morning remarks could soak the streets with news in so many places, so very quickly - they did not have to stand on ceremony and caution their tongues in the same way.
Students at Skidmore College have a different expectation of privacy, too - we expect that any flippant or incorrect remark we make in the classroom not be there for posterity. Of course, the primary difference between what Thomas Jefferson had at the College of William and Mary and what students at Skidmore College have is a technological one - the advent of the personal computer and cell phone have made the 21st century classroom quite different.
The advent of the personal computer and the cell phone have had significant consequences - both remarkable and regrettable. Some knew the economic disruption that would occur from the personal computer and cell phone; few predicted the political disruption that would be caused by it (think of how Russia bought advertisements on Facebook to sway the 2016 election); but, did any one of us realize how it would affect our privacy in the classroom? The privacy of world leaders has been punctured for the better (The Panama Papers), and for the worse (Wikileaks) - however, under New York State’s one-party consent law, you may be surprised to know that you can be recorded in the classroom.*
New York State has a one-party consent law where “you can record a phone call or conversation so long as you are a party to the conversation. Furthermore, if you are not a party to the conversation, a "one-party consent" law will allow you to record the conversation or phone call so long as your source consents and has full knowledge that the communication will be recorded.”
In short, the one-party consent law permits all students at Skidmore College with a device that has recording capabilities to record what their professors and peers say, so long as they are present in the room. The recording of class audio is not illegal; the dissemination of the recording is where things become problematic. Essentially, students can record classroom audio as they please, and professors can record the audio of their classroom.
There is a very brutal legal fact under the one-party consent law, especially in a college classroom - none of us really have a right to privacy. The ramifications of this are significant: the audio recording of class will without question impede the free and open exchange of thought in the classroom.
At the same time, we ought to acknowledge how the personal computer has made the classroom more equitable for students with disabilities in important ways. For example, the personal computer has made the classroom more equitable for students who have Dysgraphia. The International Dyslexia Association defines Dysgraphia as “the condition of impaired letter writing by hand, that is, disabled handwriting. Impaired handwriting can interfere with learning to spell words in writing and speed of writing text. Children with dysgraphia may have only impaired handwriting, only impaired spelling (without reading problems), or both impaired handwriting and impaired spelling.”
Last year, Student Academic Services (SAS), which assists students in getting the accommodations that Section II of the Americans with Disabilities Act (ADA) mandates, beta tested a new program that can record high quality audio with an accompanying notes column, highlighter, and pen.
Margret Hegener, who works at SAS and assists students in getting the accommodations that the ADA mandates, says, “a student whose disability affects their fine motor abilities may need to type their notes to capture what is said in the classroom, but they would not need to record the class.”
In short, if you observe a student using a laptop in a classroom, do not assume that they are recording audio. When a student with a disability needs a laptop with recording capabilities, the professor of the course is consulted by SAS. Of course, Professors of different departments have various policies on laptop use, so the consultation session with SAS can often vary. Lastly, a student with a disability who records classroom audio signs a document with SAS promising to destroy or delete the recordings once the semester is over.
While most professors have policies in their syllabi about the use of laptops in the classroom, perhaps they should be opening up a discussion with their students about privacy in the 21st century classroom related to the use of laptops.
Ask your student representatives, academic advisors, and classmates about privacy in the 21st century. From this, I leave you with a quote by Yale historian, Timothy Snyder: “we are free only insofar as we exercise control over what people know about us and how they come to know it.”
*I am not an attorney. Consult an attorney, professor, or Skidmore administrator if you have questions about New York State Law or are considering recording the audio of a class.