New Jersey’s education commissioner Thursday blew off a legislative committee hearing and a crowd of angry and frightened parents worried about spying on children–but his act of contempt led to a startling revelation: PARCC test publisher Pearson can pry out private information from children posting on Twitter and Facebook.
Instead of showing up himself, the AWOL Commissioner David Hespe sent two underlings, one of whom admitted that Pearson can obtain information that children wanted to keep private by invoking an intellectual property claim to the social media sites.
(Although she did not talk about teachers, classroom instructors beware: You often use pseudonyms on Facebook–so be careful about writing about the PARCC tests.)
Hespe himself and his fellow AWOL, testing chief Bari Anhalt Erlichson, probably would not have volunteered to lawmakers–some of whom said they were “shocked” and “chilled” by cyber-spying on chidlren–that Pearson can invoke intellectual property concerns to get Twitter, Facebook, and other sites to hand over information that users want to keep private.
But Hespe’s legal analyst Patricia Morgan did volunteer it–and thereby removed all semantic quibbling about whether Pearson was “monitoring” rather than “spying.” Getting behind a false name is spying:
Pearson did spy and Pearson did invade privacy. Its acts went beyond the public nature of Twitter or Facebook to get information posters wanted to keep private.
Following an obvious script at the hearing, Morgan repeatedly said Pearson only mined “public” information of the children who post about the PARCC tests. But she strayed from the script when one legislator talked about how quickly Pearson could find out the name of a student who used a pseudonym to keep his or her identity secret. Astonishingly, Rible did not ask the obvious question–how could Pearson identify a student who used only a pseudonym.
It’s an important question, because the incident that began this controversy–the state/Pearson dragnet that caught up a student at Watchung Hills Regional High School –involved a pseudonym. The young woman wanted to keep her personal information private but Pearson broke through and found it.
The answer: Pearson, claiming intellectual property violations, can get Facebook and Twitter to reveal secret identities. So much for scanning only publicly available information.
The surprising admission came in an exchange with Assemblyman David Rible (D-Monmouth), He said he was “disturbed” that if a child with the handle “MB123” tweeted something, “in no matter of time, MB123 could be identified.” He never bothered to ask how that happened however–a key question.
Morgan, however, her voice cracking with nervousness, volunteered the amazing. She conceded that her department would not be able to identify students who carefully used pseudonyms but–and it’s an enormous but–Pearson and its cyber-spies can get that information.
“If there is no way for us”–the state education department–“to trace back specific comments, then we are at a dead end and, you know, Pearson and PARCC will have to work with the social media website to address whether or not there was an intellectual property breach.”
A minute earlier, Morgan had said Pearson had the ability to gain private, background information from the websites in the name of protecting its intellectual property:
“It could be viewed as intellectual property and they do have the ability to protect their intellectual property,” she said.
And that’s exactly what they did at Watchung Hills.
Bingo.
Except for the admission, the legislative hearing was literally a Mickey Mouse affair, with Assembly Education Committee Chairman Patrick Diegnan (D-Middlesex) giving the cowardly Hespe a free pass–“We all have schedules,” he said, as if the international uproar over Internet spying on children was just another routine issue.
Diegnan said nothing at all about an even more obvious absence–that of testing chief Bari Anhalt Erlichson, who had written a manifesto defending the spying and was expected to read it. It was revealed here that Erlichson is married to Andrew Erlichson, vice president of the $1.8 billion company MongoDB that holds subcontracts with Pearson.
Department spokesman have dismissed the importance of the connection, saying MongoDB has no New Jersey contracts. But, clearly, what helps keep Pearson financially healthy helps MongoDB–and those who work for it and those who are married to those who work for it.
The Mickey Mouse nature of the session in the Statehouse annex came with an odd colloquy from Morgan about the Disney character. See if you can figure this out:
“Say Mickey Mouse is an historical character, and somebody knew a lot about Mickey Mouse and there’s a question about it but then later they’re asked to read a passage and apply information from that passage, it could give another student who learns and happens to know a lot about Mickey Mouse or spends a lot of time researching it an unfair advantage.”
What?
Although Diegnan referred to the spying as “chilling” and promised to introduce legislation to regulate it, the only true hero of the day–besides Mickey Mouse, of course–was Assemblyman Ralph Caputo (D-Essex) who repeatedly insisted that Morgan–a lawyer, after all–cite the legal authority that gave the state and a private corporation the authority to spy on and then demand the punishment of students referencing the PARCC tests on their social media.
“What gives you the authority?” he demanded.
Morgan said she would have to get back to him on that–one of many instances in which she could not answer questions Hespe should have been present to answer. But Hespe, along with Erlichson, wimped out, apparently fearful of being in the same room with uncomfortable truths.
Bob, off-topic
Will Silence DoGood, who wrote the terrific “Twas the Night Before PARRC” 3-2-15 post, write for your April 1 blog? April Fool stories we’d love to see:
-Omissioner of Heducation says, “Whatever we’re doing, we need to double down” so NPS attendance rate is now 200%
-After rigorous questioning by Stir Logy reporter, district spokesperson documents the times Stuporintendent offered to meet student association. Mainstream media acknowledge they never questioned assertion.
Hespe and Erlichson were probably having a power lunch with Anderson to brainstorm strategies to circumvent the law.
Bravo, Mr. Braun, for keeping this matter alive! They have gone too far – WAY TOO FAR! This is not a matter of testing students to help determine areas of weakness so that those areas can be appropriately addressed by teachers and school districts. This is a matter of dollar bills!
Who hasn’t taken a test and talked about the tough questions afterwards? What’s next? Will they be bugging the lunch room or tapping our phones?!?
Twitter has a strict security policy re: personal information, so how did Pearson get identifying information about a student with a pseudonymous handle? According to Twitter’s support page, it may disclose personal information “if we believe that it is reasonably necessary to comply with a law, regulation or legal request; to protect the safety of any person; to address fraud, security or technical issues; or to protect Twitter’s rights or property. However, nothing in this Privacy Policy is intended to limit any legal defenses or objections that you may have to a third party’s, including a government’s, request to disclose your information.” Twitter won’t even release users’ non-public information to police without a subpoena or court order, and requests for the contents of tweets and photos requires a search warrant.
Hi Bob,
Thank you for continuing to report this story. I am no reporter, but I was sitting in the front row yesterday taking detailed notes which I was live-uploading to Facebook’s Opt Out group (I also spoke during comment on A4165 regarding how the real issue here is PARCC/Pearson/Caveon/NJDOE monitoring children’s social media to make up for their test’s fatal operational design flaw (i.e., that they designed a class where Sally in Montclair might take the exact same test 3 weeks before her cousin Sandy in Sparta sees it). I am not sure that your interpretation of Morgan’s comments in response to Asm. Rible’s questioning is correct. Morgan said two things: (1) she said that test content “could be viewed as intellectual property and they have the right to protect their intellectual property” and she also said, shortly thereafter, (2) “If there is no way for [NJDOE] to trace back specific comments, then we are at a dead end and, you know, Pearson and PARCC will have to work with the social media website to address whether or not there was an intellectual property breach.”
My takeaway was NOT that she was saying that Pearson could get the social media sites to divulge the personally identifying information of students; rather, my takeaway was that she was saying that Pearson could avail itself of the option of issuing a DMCA takedown notice. Such a notice would NOT give Pearson access to the account holder’s info — and so, insofar as it exhorting NJDOE to have the student punished for the infraction, Pearson/NJDOE would be at a dead end. However, Pearson/PARCC would still be able to attempt to protect Pearson/PARCC’s alleged IP by requesting that Facebook, YouTube, Twitter, etc. remove the offending post/video/tweet. See, e.g., EFF’s guide to YouTube removals (specifically, the section regarding DMCA takedowns): https://www.eff.org/issues/intellectual-property/guide-to-youtube-removals#dispute I assume that Pearson/PARCC would have a hard time proving infringement without releasing the test question at issue to Facebook or YouTube or Twitter (and I think a great story would be finding out if they’re doing that). But not to defend Morgan generally (b/c I agree with you and Asm. Caputo that she was woefully unprepared yesterday), I do think that this particularly comment was made within the broader context of the remedies available to copyright holders whose copyrights are breached online.
I am not defending Pearson’s/NJDOE’s actions in any way (in fact, I was the person who obviously annoyed Asm. Diegnan yesterday by calling for Hespe and the lot of them over at NJDOE to be “summarily fired.” But I also think we need to be careful not to overstep our claims, or our own credibility becomes the story. Thank you again for your reporting on this issue — I can’t tell you how much I appreciate that you broke this story. But I hope that you’ll also take my comments (and the link I posted above) into account as you continue to report this story. Thank you.
Bob Braun: That’s not what the education department is saying. Also, this is from Twitter’s privacy policy: “Notwithstanding anything to the contrary in this Policy, we may preserve or disclose your information if we believe that it is reasonably necessary to comply with a law, regulation or legal request; to protect the safety of any person; to address fraud, security or technical issues; or to protect Twitter’s rights or property.” I’m sorry but I believe, as both a journalist and an attorney, that’s a big enough hole for Pearson to get information it wants to protect what it claims is the integrity of the tests. Google and other social media outlets have similar wording.
Mrs. Blaine makes a valid point about students in NJ taking the test up to three weeks apart. I’ll advance that argument even further, with the multi-state aspect of the PARCC (or SBAC), students in different states can take the same exam up to 7 weeks apart!
Intellectual property – and everything that comes with it – is one big reason to keep corporations out of public schools.
This is awful – amazingly awful.
Why would NJ state or local education officials even be allowed to LOOK at student’s social media?