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Windows Thread, Accessing Student Emails in Technical; Does anyone have a definitive answer to this one? I have been asked to access a student's email account to ...
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    Accessing Student Emails

    Does anyone have a definitive answer to this one?

    I have been asked to access a student's email account to provide evidence for a complaint. I don't know the nature of the complaint, but it's probably an investigation of bullying or general 'larking about'.

    I refused to give access to the account without the student's consent, on the grounds that this would breach their Human Right to Privacy. TBH I don't really give a monkey's about their Human Rights, before you all start accusing me of being a left-wing pansy, but this was the advice I was given some years ago at a seminar given by a legal firm. Their advice was essentially that a student doesn't give up any of their rights to privacy or under the DPA just because they happen to be students.

    On the flip-side, our Head is arguing (possibly quite reasonably) that the email is on our system, they're students, and he'll insist that they give consent, but he doesn't see why he should have to.

    Anyone know the answer? Even more pertinently, can someone point me towards some published advice on this?

    Thanks.
    Last edited by john; 1st February 2011 at 05:51 PM. Reason: Please watch your language

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    joe90bass's Avatar
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    What does your AUP say? Ours says that all activity is monitored, however I generally get permission from our head if emails need monitoring, and it's only ever been by me, I haven't given anyone else access

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    dwhyte85's Avatar
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    The school owns the e-mail and they'd (students) presumably sign something saying within the AUP that allows for this access?

    Honestly, I'd do it because:

    a) A boss has said to do it, they're accountable - you're just following instructions
    b) It may save someone getting a kick-in?
    c) It's not worth arguing with a senior member of staff regarding it, you're not going to win!

    If it was his Hotmail account and you sniffed the PW/logged it... different story!
    Last edited by dwhyte85; 1st February 2011 at 12:22 PM.

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    It says we can monitor emails within the scope of RIPA. That means I can track emails etc, but not necessarily view the contents. Human Rights becomes an issue, I think...

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    Our regulations state quite clearly under what conditions we would access a student's (or a member of staff) email. What does yours say?

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    Quote Originally Posted by dwhyte85 View Post
    The school owns the e-mail and they'd (students) presumably sign something saying within the AUP that allows for this access?

    Honestly, I'd do it because:

    a) A boss has said, they're accountable - you're just following instructions
    b) It may save someone getting a kick-in?
    c) It's not worth arguing with a senior member of staff regarding it, you're not going to win!

    If it was his Hotmail account and you sniffed the PW/logged it... different story!
    Well, you couldn't use that argument for staff emails though... reading staff emails just because a member of SLT asked you to would put you (and them) on a sticky wicket. Students don't have any less rights that staff in that regard (as I understand it).
    In truth, I'm encouraged to argue with SLT whenever necessary - as a holder of specialist expertise, I'm supposed to advise them. That said, if they insist I shall make a note of it and carry out the action anyway. We're usually pretty hot on this sort of thing - because I've flagged it as an issue, the lawyers will be contacted for advice, etc. I'm just wondering if anyone else has dealt with it before.

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    dwhyte85's Avatar
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    Quote Originally Posted by DPrince View Post
    Well, you couldn't use that argument for staff emails though... reading staff emails just because a member of SLT asked you to would put you (and them) on a sticky wicket. Students don't have any less rights that staff in that regard (as I understand it).
    In truth, I'm encouraged to argue with SLT whenever necessary - as a holder of specialist expertise, I'm supposed to advise them. That said, if they insist I shall make a note of it and carry out the action anyway. We're usually pretty hot on this sort of thing - because I've flagged it as an issue, the lawyers will be contacted for advice, etc. I'm just wondering if anyone else has dealt with it before.
    It depends what they signed up to DPrince.

    You can sign an AUP that says we're allowed to read your e-mail if we feel it's necessary, that is the terms of you getting an e-mail account... it means they can read your e-mail. If the pupils (or staff) haven't signed anything that implicitly states this... you have a case to argue it. I'd imagine both staff and pupils have, somewhere along the lines...

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    Quote Originally Posted by nadeem View Post
    Our regulations state quite clearly under what conditions we would access a student's (or a member of staff) email. What does yours say?
    They're not 'regulations', which is rather my point. Our AUP and email disclaimer says that we can monitor emails to the extent of RIPA, but that only covers monitoring emails. Once you start reading emails or accessing email accounts without consent, you're into Human Rights territory, which starts to conflict with RIPA.

    Are you suggesting that your AUP (or RIPA) gives you the legal right to access someone's account without their consent in order to access their emails?

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    dwhyte85's Avatar
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    Quote Originally Posted by dwhyte85 View Post
    Thanks - that's useful, although I note the use of phrases such as "subject to applicable legislation" and "without purporting to take away any of the end-users rights". Later, it specifically says: "However, computer and network operators are also required to respect the privacy of users."

    So not totally clear cut. I think I'll have to get to grips with the detail of RIPA.

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    dwhyte85's Avatar
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    It's just to bolster any argument - not aimed to resolve this debate ;-)

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    This link may or may not be helpful: ICO - The Employment Practices Code - Supplementary Guidelines

    It refers heavily to employees and students are not employees.
    The requirement of the LBP Regulations is to make reasonable efforts to inform users of the system that an interception may take place.
    It seems your AUP may need further work to make sure that students and staff are aware that email content may be monitored where part of an investigation and will only be done under the written direction of the Headteacher/SLT.

    If you interpret the clause you have too literally, the school is powerless to fulfill its legal responsibilities under Safeguarding... i.e. it has to be able to investigate Safeguarding issues.

  13. Thanks to elsiegee40 from:

    dwhyte85 (1st February 2011)

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    No, students are not employees. Equally, you could argue that the majority of schools are not businesses. Which makes the paper irrelevant. Unless you assume that by "employees" they mean "users"? Besides which, that document a) only covers interception of emails during the course of transmission (and not accessing someone's email account) and b) only appears to allow it for reasons that don't apply to a school.

    A common thread here seems to be the suggestion that you can get away with pretty much anything if your AUP says you can, but this isn't true. If your AUP asserts something that is not allowable by law, it doesn't suddenly become allowable. It just means your AUP is not applicable. The fact that I enter a clause into my AUP stating that I can read student (or staff) emails without consent doesn't necessarily make it so, even with regard to safeguarding. The ability to investigate safeguarding issues doesn't mean that you can do whatever you like... I couldn't break into someone's house to investigate a potential safeguarding issue. My question is: can I break into someone's email account. The suggestion that "Yes you can if it's in your AUP" isn't good enough, because that doesn't cover you for illegal breaches.

    I'm just awaiting a response from our lawyers - I'll let you know what they say.

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    So, you're suggesting if teacher X is assumed to be having a relationship with pupil Y and they've been communicating over e-mails... that the school should simply wait for permission from either pupil Y or teacher X to go ahead and check e-mails?

    If they don't consent, what then? Wait for the police?

    EDIT:

    You mention 'breaking in', as I see it the school has rented the pupil an e-mail account to use based on a set of terms. It's not breaking in as such, it's checking up that was agreed to prior to the account being setup.

    If you have a landlord and they've got a clause that states 'If we think you're doing something naughty, we can enter without warning' and it's signed.... they can pretty much do that.
    Last edited by dwhyte85; 1st February 2011 at 01:57 PM.

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    Quote Originally Posted by dwhyte85 View Post
    So, you're suggesting if teacher X is assumed to be having a relationship with pupil Y and has been sending e-mails... that the school should simply wait for permission from either pupil Y or teacher X to go ahead and check e-mails?

    If they didn't consent, what then?
    I'm not suggesting anything - I'm merely stating the law as I understand it. Unfortunately, they tend not to create legislation on the basis of individual "oh, but what if this happened" scenarios, because I entirely take your point.

    If I was suggesting anything, I would suggest that if Teacher X was 'assumed' to be having a relationship with Pupil Y then this wouldn't necessarily be enough for you to just access their email accounts. I don't know that for a fact, which is why I asked the question originally, but my understanding of various regulations would certainly suggest this.

    RIPA wouldn't help you, because it covers communication interception at the time of transmission.
    Your AUP wouldn't help you because it would be in breach of the privacy obligation of the Human Rights Act (and possibly the Computer Misuse Act).
    I would suggest that you would investigate it the same way as any other disciplinary or legal issue, which would be to interview both parties, ask for permission to access their emails (in the same way that you might ask for permission to view their mobile phone SMS details) and then pass the issue onto the police.

    Are you suggesting that the suspicion that someone might be in that situation means that you can just do what you want? You would need permission to search them, look in their bags, enter their house. The fact that the School owns the telephone system, network, or even mail server does not automatically give them the right to access the private information contained within those systems (as I understand it).
    I have to say again though that it isn't particularly clear-cut. I can't find anything that is conclusive on this.

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