Snapchat and Disappearing-Message Apps Vex Schools

Schools are facing growing challenges from so-called “ephemeral messaging” apps, which allow users to send mobile-to-mobile content that disappears without a record after it has been read by the intended recipient.

Take Snapchat, which a growing number of teachers cite as a cause of classroom disruption. Some districts are moving to block student access to the popular app, which now claims more than 100 million users worldwide.

And even more vexing may be the use of such new technologies by school administrators. Is it appropriate and legal, for example, for a superintendent to conduct district business using Cyber Dust, an app the company’s website boasts will let professionals communicate freely via disappearing text messages that “provide absolute discretion and can never be recovered once they’re gone”?

That very situation is the source of a brewing controversy in California’s 73,000-student Fresno Unified school system, where Superintendent Michael Hanson acknowledged to the Fresno Bee that he and his senior staff used the app during a time period for which the district is now under FBI investigation over no-bid construction contracts. A spokesman for the district said it is cooperating with the investigation and that staff members acted in accordance with district regulations when using the app.

Ephemeral-messaging proponents include billionaire NBA team owner and reality-TV star Mark Cuban, who founded Cyber Dust. In an email interview with Education Week, Cuban argued that new technology allows for the digital-age equivalent of a confidential face-to-face discussion.

“Hopefully, more school officials will use Cyber Dust,” Cuban said. “It will allow them to have private conversations where they can be honest and productive rather than writing every message ... to protect themselves.”

But legal experts say it is very much an open question whether a disappearing message sent by a public official should be considered speech, akin to a private conversation, or a textual record, such as a memorandum or email.

Until there’s an established consensus, districts will continue to face a conundrum, said Phil Hartley, a partner at the Georgia law firm of Harben, Hartley, and Hawkins, which represents school boards around the state.

“We have a belief that people have a right to view their government in operation, but the law does not guarantee the public the right to sit in the superintendent’s office and hear everything he says to his staff,” said Hartley, who is also a board member for the National School Boards Association’s Council of School Attorneys. “This is a case where the technology, and how we use it, has far outstripped our policymakers’ thinking about how to apply these considerations to the [modern] world.”

Speech or Text?

Micheline Golden experienced Fresno’s experiment with Cyber Dust firsthand.

During the first six weeks of Golden’s recent stint as the head of communications for the district, Hanson and his four-member cabinet exchanged a steady stream of traditional text messages, she said in an interview.

But in April 2014, Golden said, she received a message from Hanson asking her to download an app she had never heard of—Cyber Dust—to her phone.

When she received her first disappearing message from her boss, she was shocked, said Golden, who has worked in public-sector communications for three decades.

“I let him know I didn’t feel comfortable using it,” she said. “In my opinion, communication between administrators is public. If you’re intentionally using something that destroys that, it’s like shredding a hard-copy record.”

Golden has since resigned, and Hanson has since found himself in hot water. Last month, the Bee reported that a federal grand jury had subpoenaed district records related to the use of public bond money, as well as district officials’ involvement in awarding no-bid contracts for large construction projects. The paper also first reported on administrators’ use of Cyber Dust, as well as related calls from the local teachers’ union and other groups for Hanson to step down over the matter.

“Four senior staff members used [Cyber Dust] for less than a month on a trial basis in the spring of 2014,” said the district’s chief information officer, Miguel Arias. “We discontinued it after only a handful of messages because it was not helpful or useful in our work. Staff members were within district regulations in using the app as ... we do not keep instant or text messages.”

Still, Golden said, district officials who use an ephemeral-messaging app are at a minimum creating the appearance that they have something to hide. “It looks as though you’re avoiding the possibility of something being discoverable,” she said. Golden also warned against use of technologies that might lead public officials to assume that their professional communications will remain private forever, saying it “creates a tendency to say things that shouldn’t be said.”

School technology experts consulted by Education Week concurred, saying districts have a responsibility to use technology to promote transparency and public trust.

An Unsettled Question

But Cuban, the Cyber Dust founder, sees a different problem.

“Should [school officials] be able to discuss business at lunch? What about over the phone?” he said. “There is a place for public disclosure and transparency. But there is a place for privacy as well.”

James Mayer, the CEO of good-government group California Forward, agreed. The group has not taken a formal stance on the use of ephemeral-messaging apps, but Mayer said it would be a mistake to automatically attribute nefarious motives to public officials who seek to use such a tool.

“If you really want good public services, with fewer mistakes, you have to allow managers to think out loud and consult with their peers and talk through issues with their teams,” he said. “Not all communication is public record.”

And when technology makes drawing such lines difficult?

“I don’t think it’s fair to hold anyone accountable to a standard that is not yet established,” Mayer said.

For districts elsewhere, that may speak to a deeper problem.

“School [officials] are beginning to do business more and more through various kinds of technology, from email to texting to social media,” said Hartley, the school board lawyer. “Policies haven’t kept up, and nobody’s quite sure whether [newer forms of] communication are more similar in nature to what we’ve thought of in the past as conversation, or what we’ve thought of as records.”

In Fresno, for example, the superintendent and his backers have pointed out that the district is not required to store traditional text messages “for any period of time.”

Such messages could conceivably be subpoenaed from the relevant phone company, or accessed in other ways, however. That’s what happened to Richard Como, the former superintendent of Pennsylvania’s 7,200-student Coatesville district, who was forced to resign after racist and sexist text messages he sent using a district phone were made public.

And while the makers of apps such as Cyber Dust say that messages sent over their platforms are never saved on a hard drive or server and thus aren’t discoverable, those messages can in some circumstances be captured via screenshots and other means, raising a host of messy issues and questions.

What should district leaders make of all the uncertainty?

“There’s a legitimate policy debate to be had here, and it’s silly to think that no one is going to use these technologies,” said Hartley, the school board attorney.

“But if the choice is between something you’re comfortable with, where you know the rules, and something out on the cutting edge, where you don’t know the rules, my advice would be to do what you’re sure of.”