Explainer: Digitech risks for School Boards

I'm a parent with two children in public schools in Christchurch, NZ. I'm also a software developer with an interest in education. I'm writing this post to make members of NZ school boards of trustees aware of a significant risks they face, but which I believe few if any school boards in NZ recognise, much less attempt to mitigate.

These risks are created by the software adopted by nearly every school in NZ. This software is provided via national-level agreements made by the Ministry of Education with their vendors, who are mostly US-based multinational technology corporations. Increasingly, school curriculums completely depend on this software.

Today, nearly every school in NZ is either a 'Microsoft Office 365' or a 'Google Classroom' school. Many schools also embed products like SeeSaw and StoryPark into their student assessment process and depend on them for parental engagement.

My goal here is to explain the liabilities lurking within this status quo, and how the Ministry of Education has divested responsibility for these liabilities onto individual school board members.

Summary

The risks I believe school boards are taking on are:
• the liability that software vendors could take action against schools for a potential breach of contract, and
• risk that parents or students refuse to accept terms of software on which school curriculums depend, meaning the school has to find an alternative way to deliver the curriculum to some subset of students.

Universal Breach of Contract?

At the time of student enrolment, schools in NZ ask parents to approve their child's use of the school's choice of software and other digital technology by ticking a box on an enrolment form. It is not clear what the implications of not ticking this box would be. Asking for consent this way undermines the legally binding contract between the user of software and the software vendor. That is because the vendor cannot legitimately claim that the user (or user's guardian) gave 'informed consent', which could only be achieved if

  1. I (as the child's guardian) had been able to read and fully understand the implications of the vendor's 'End User License Agreement' or EULA under which the vendor permits the user to use their software, and
  2. I understood the implications of not agreeing to them.

As it is, my wife and I, as our children's guardians, never had the opportunity to see the EULA of any of the software used at our children's schools, and even if we had, I don't think we would have been able to really understand their implications on us and our child. What is more, it never felt like a choice - the implication was that we have to agree to those terms in order for our child to be enrolled.

I'm not a lawyer, but I'm fairly certain that school policy stretches the already very tenuous fiction of 'informed consent' beyond the breaking point. As such, anyone using the software under those circumstances is doing so without explicitly agreeing to the EULA, and as a result has failed to complete the contract, meaning they are using it in breach.

What could a vendor do in response to this breach of contract? A good question. Maybe they will turn a blind eye. But it hangs like a sword of Damocles over the head of the entire public education establishment, particularly those who bear responsibility for the enrolment process and school technology decisions.

Informed Dissent

The other side of this situation is potentially an even greater threat for schools. It is that parents could decide to say "No, I do not accept the school's technology choices for my child" after the child is enrolled. As we find out more and more about tech corporation behaviour and the massive power and influence they have over our society, saying 'No' is quite a rational and child-respecting position for a parent to take.

What are the ramifications then for the school, with its statutory obligation to educate those children? With a single purposefully unchecked checkbox, or a single letter from a parent formally rescinding that permission, a school completely invested in using Google Docs or Microsoft Office or SeeSaw throughout its curriculum would be faced with a very awkward situation.

Is your board aware of these issues? Have you developed contingencies? The Ministry of Education have made this entirely the responsibility of school boards.

The detail

Universal Breach of Contract

The vendors of proprietary software (the code is "proprietary" - secret to the vendor, e.g. Microsoft, Google, SeeSaw, or Storypark) require that each user enter into a binding contract with them. This contract is used to ensure that the vendor's Terms and Conditions (or End User License Agreement, aka 'EULA') can be legally enforced upon the user. The user is given a brief opportunity to view those Terms, and then if they deem them acceptable, they must type "I ACCEPT" to demonstrate a deliberate, conscious acceptance. Most of us realise that this process is farcical, because the user seldom reads the Terms and few feel they have a choice in accepting (usually their education or job requires they use the software!) However, for the vendor to claim they have 'informed consent', the user must have an opportunity to read the actual Terms and subsequently explicitly accept them.

(Note: even the IP lawyers I've spoken to, who write these EULAs for their clients and know what clause they typically contain, never read them on other software, because they feel that not accepting is not a real option and they don't want to be reminded of the disempowering terms they've agreed to.)

In the case of our children, they are at schools that use Google Classroom. Neither my wife nor I have ever been asked to type "I ACCEPT" on behalf of our children on their school Google Classroom accounts. I have been informed by the principal of one child's intermediate school that we accepted the schools software choices across the board when we enrolled our child - we apparently ticked a box on their enrolment form saying something like  "You accept the school's technology choices", which apparently came right after "You allow your child's likeness to be published online on the school website or newsletter if photographed doing school activities"...

Such an approval is one crucial step removed from 'informed consent': neither my child nor I (or my wife) ever had a chance to view the actual terms and conditions of each proprietary application the school has chosen to use. Some people refer to this process as 'consent theatre'; it's a core practice in the global software industry. Does this mean that every child at every school in NZ that uses any of these proprietary software applications is using them in breach of contract with the vendor?

You might think this is just an oversight, and that the vendors don't intend for this to be the case, and that may well be true. However, consider the following possibility:

Consider, for example, if the NZ Government decides to join the other G7 nations in taxing multinational tech corporations. The corporations could retaliate by taking a secret action against the NZ government via the Investor-State Dispute Resolution (ISDS) measures in the 'Comprehensive and Progressive Agreement for Trans-Pacific Partnership' (or CPTPPA) which NZ has ratified. They could, for example, allege that NZ schools are using their software in breach of terms, and threaten to disable access to those services by any schools in NZ, which would effectively render schools with a dependence on that software unable to teach. Under the terms of the ISDS the government can be required to keep such legal action by corporations secret from the people of NZ.

This is not a hypothetical situation - corporations like Microsoft have previously openly threatened similar actions against governments, like that of South Korea.

The way in which schools use their technologies thus gives the corporations substantial leverage over the NZ government, with school boards bearing the brunt of any corporate threats or action, despite the fact that it is the Ministry of Education who have organised these 'all schools' deals with them.

Informed Dissent

If a group of parents was to refuse to accept the Terms of any of the proprietary software their children's school curriculum depended on, how would the school accommodate those children? Would it not be seen as the school's statutory obligation to do what is required to come up with an alternative solution that was acceptable to the parents?

There are legitimate grounds upon which informed parents might reject the terms of the proprietary software currently used by schools:
1. In most cases, the software stores your child's data in proprietary file formats, which effectively requires that the child has access to that specific software in order to access (read, edit, reuse, remix) their own creative learning artefacts at any future time. What's more, if a child moves schools, they lose access to their school-provided email address, and along with it, access to all the digital artefacts they have created while attending that school.
2. In almost every case, the software provides integrated data storage, like Google's 'Drive' or Microsoft's 'One Drive'. All of these storage systems hold your students' data outside of NZ and its legal jurisdiction, creating substantial privacy and data sovereignty liabilities.
3. The vendor usually retains the right to alter their Terms at their whim, either explicitly in their Terms, or practically - most of you will have received, at some point, an email notification from a vendor whose software or online service you use, to alert you they're updating their Terms and Conditions. They almost certainly include a link to a summary of the changes, in terms that make them sound innocuous. They occasionally provide a link to the full terms, but the vendor knows (based on their website analytics) that almost no one will ever even look at them, much less actually read and comprehend them.
4. The software, particularly 'productivity' software, which is core to most schools' curriculum activities (like Microsoft Office 365 and Google Docs), is designed for US-based corporate users, not primary, intermediate, and secondary school students. It is also not designed with an awareness or appreciation of Aotearoa New Zealand and our culture.

To be honest, I strongly disagree with the terms of all of these proprietary software vendors, and currently give my consent very grudgingly because I know the difficult situation refusing to do so would put my school into. At a different school, with a less thoughtful attitude about my concerns, I would almost certainly not be so generous. I also know that, as a parent, I am not alone in holding these concerns.

The risks and mitigations

Are any NZ school boards aware of these risks? Do any boards have members equipped to understand and mitigate them? Boards have been handed these technologies by the Ministry of Education, who have gone to some lengths and great cost to secure their use on a nationwide level. But, based on my formal enquiries, the Ministry offers no guidance to school boards to advise them on the 'gotchas' buried in the EULAs for the various software applications they offer. Despite implicitly endorsing these proprietary digital technologies by making them available to schools (with the cost borne by the taxpayer, not the schools), the Ministry does not accept any responsibility for the deep dependencies schools have developed on them.

In addition to pointing out the risks, I would also like to assure you that there are proven alternative approaches for providing the digital technologies schools need that mitigate them. These alternatives, however, are only realistic if the Ministry of Education has the vision to invest in their development in collaboration with students, educators, and technology partners right here in NZ. The approach I propose would  have many additional benefits for NZ school children, educators, and NZ in general. It offers the prospect of

  • providing deep understanding of underlying technology concepts rather than the current approach of 'teaching a (specific vendor's) tool',
  • making students active participants in their learning technologies rather than passive disempowered 'users', and
  • ensuring that those technologies are designed by people aware of Aotearoa New Zealand and our culture, making the whole approach more relevant and empowering for our tamariki.

The fact that this approach would also give us technology independence and almost certainly offer substantial ongoing cost savings - and keep what money is spent here in NZ rather than increasing our negative balance of trade and funding foreign corporations who pay little if any tax in NZ - are just icing on the cake. 

In a future post, I will provide a more detailed explanation of how this could work, including demonstration technologies you can use right now. In the meantime, so you can get the flavour for what I would propose, I offer you this entirely different approach to digital technology in schools that is already proven overseas.

I would be interested to hear from any School Board members who have a view or want to know more. You are welcome to contact me.

Comments

Thanks for raising these issues Dave. It is good to be reminded of the broader picture - what are all the consents we are gaily making when we tick EULA agreements and why aren't we more stalwart in refusing to do so?

Thanks Jane, yes, I guess we don't tend to think about these things due to the perception that 'everyone else is doing it, so I guess I'm safe'... i.e. herd instinct. Sadly, I think we only miss our freedoms and rights after they're gone.

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