Lecture capture, strikes, and performance management

As you may be aware, I have a keen interest in lecture capture, both in terms of the educational benefits for students and for arguing that lecture capture policies are positive and protective and when done well can mitigate the concerns of academic staff. If you’d like to see my previous work on this please see here for a paper related to lecture capture and student achievement and here for a review of the literature and lecture capture policies.

On Twitter I was directed (by the authors) to a preprint discussing lecture capture in the context of surveillance and the use of lecture capture to break industrial action and for performance management: “Employee Surveillance: The Road to Surveillance is Paved with Good Intentions” by Lilian Edwards, Laura Martin and Tristan Henderson.

One of the aims of this paper was to determine the legal and moral status of universities using lecture capture to break strikes, using the 2018 UCU action as a case study. The authors conclude that repurposing lecture capture in this way infringes upon employee rights.

Before I detail my concerns about this paper I would like to make my position on this very clear: lecture capture should not be used to break strikes. It would erode trust in both academics and students and it would be incredibly short-sighted. I agree that if lecture capture was used in the way that this paper claims it is used, it would be an infringement of privacy rights and the damage to long-term lecture capture adoption (and the educational and accessibility benefits it brings) is absolutely not worth any perceived short-term gain from using it to break strikes. 

On a related note, lecture capture should not be used for performance management. I believe that reviewing one’s own lectures is a very useful way to improve your pedagogic practice, and quite frankly there are a lot of lecturers who might benefit from seeing the reality of their teaching, but that should be a personal choice. 

I would also like to highlight that this paper is largely written from a legal perspective, which is not my subject or area of expertise and I am willing to accept that my issues with this paper may be due to unfamiliarity with the format or the law (although I’d argue that if this paper is to be read widely, which I assume is the intention, then any misunderstandings on my behalf would be mirrored more widely). 

Finally, I welcome the discussion and progression of guidance surrounding lecture capture, and I am pleased to see updated guidelines from Jisc and BILETA (forthcoming). My concerns are not that we should not be talking about these things, but rather, that it greatly matters how we are talking about them and we need to be clear and transparent about what is actually happening when it comes to lecture capture.

Oh, also, this blog is my individual work and should not be seen as reflecting the views of any of my co-authors whose work is mentioned.

So with all that in mind…

1      Where is the evidence that lecture capture was used to break strikes?

“The academic (UCU) strike action in the UK in 2017-2018 threw up a highly combative environment where some universities reportedly considered or attempted to “strike break” by replacing, without new permission or consent, striking academics with recordings of their lectures made in previous years” (p2)

“The strike action created a highly combative environment, and one of the outcomes was that some universities threatened to “break” the strike by replacing, without new permission or consent, striking academics with recordings of their lectures made in previous years.” (p9)

“…is lecture capture imposed consensually for one purpose (widening access or lecture review) and then re-used for other purposes (strike-breaking, performance assessment) substantially equivalent to unexpected or covert surveillance? Certainly although this precise scenario (repurposing) has not yet come to Strasbourg, the case law seems to indicate the court would not look favourably on this in terms of engagement of Article 8(1).” (p23)

“They were not used for giving access to lectures to students. In our case study, lecture capture is almost exclusively initiated for purposes to benefit students, but is then repurposed for strike breaking or performance assessment.” (p23)

“Thirdly, in our case study we posit that videos made as part of lecture capture schemes might then be repurposed for strike-breaking or employee surveillance as performance assessment” (p19)

“Nevertheless, the subsequent use of recorded lectures for purposes not originally intended or envisaged – such as strike breaking - is likely to be sufficient to infringe employees’ Article 8 rights.” (p24)

"The use of recorded lectures in unanticipated ways (i.e for ‘strike breaking’) may, as we have introduced above, constitute a breach of data protection’s ‘purpose limitation’ principle and obligations of transparency,115 thus failing to be “in accordance with law” (p26)

Without prior knowledge, after reading this paper I think it would be reasonable to conclude that during the UCU strike in 2018, a number of universities in the UK used lecture capture to break strikes against the wishes of academic staff. Given my interest in lecture capture, I followed this issue quite closely during the strike. I am aware of two institutions that threatened to use lecture capture in this way, but I am not aware of any evidence that the threat was followed through. I am also aware that in some institutions, striking staff were asked to upload old recordings themselves, although this was in the same vein as when striking staff are asked to tell students whether their classes will take place, it is a request that can be ignored yet this was reported on social media as the institution threatening to break the strike with lecture capture against the wishes of the academics involved.

This above is not to negate the effect of any threats or the fact they should not have been made, but I do think that there should be evidence (none of the above quotes have any references to supporting evidence that this happened) and the scale and the exact nature of the problem should be made clear. It might be that this did happen, and there is evidence to support the above claims, but it’s not included in the paper. 

Towards the end of the paper, it is acknowledged that the use of lecture capture to break strikes is largely a narrative rather than a fact, but this comes very late as an admission. 

“The trust of academics in their management in the UK was deeply wounded by the UCU strike in general, and was damaged further by the narrative, whether true, prevalent or over-hyped, that recorded lectures might be used as strike-breaking material against their will.” (p29)

I think that the paper would be stronger if it had been framed more explicitly as what it is: a hypothetical discussion of the legality of breaking strikes with lecture capture, should it happen in the future, with the UCU 2018 strike and threats as motivation for the discussion. As it stands, in my opinion this paper presents the impression that this has already occurred on a reasonable scale and that is not helpful to anyone. This is an area in which discussion is needed, what it does not need is exaggeration. It is mentioned that these threats were widely circulated on social media. This is true, and if you search for “lecture capture strike” on Twitter what you’ll see is a lot of academics that believe that it actually happened on a wide scale. I don’t think that reinforcing this belief is responsible.

2      Performance management

“Furthermore, evidence is emerging that some universities are without publicity using lecture capture as a surveillance mechanism to grade or intimidate academics, or as a means to covertly replace them entirely” (p3)

“One reason for this was that some universities had already indicated prior to the strike, either via express policies or via practice or statements, that they did use or might consider using recorded lectures to assess the performance of lecturers as well as use them as a resource for students” (p9)

“The most relevant case to our case study is the recent decision in Antović and Mirkovic v Montenegro, in which private life was found to be breached when university lecturers were video recorded, without giving their consent, during teaching in auditoria. The recordings were used to assess lecturer performance by their Dean, not to benefit students in any direct way.”(p21)

The first claim is made without any reference to supporting evidence. 

The second quote refers to the St Andrew’s lecture capture policy which states that recordings will not be used to monitor staff performance other than in formal disciplinary and complaint proceedings. This is an accurate representation of this policy and again, for clarity, my opinion is that a blanket ban on lecture capture being used for performance management is more appropriate. What I have an issue with is that the scale of the problem is not made clear. Of the 35 policies we identified in Nordmann & McGeorge (2018), 12 policies make no reference to performance management, 16 have a total blanket ban, 5 state legal reasons as an exception to the blanket ban (e.g., Recording of lectures will not be used for evaluation of staff performance, but may be used in accordance with the provisions of relevant data protection legislation, for example for law enforcement purposes”) and two, the University of St. Andrews and the London School of Hygiene and Tropical Medicine, state that lecture capture can be used in disciplinary actions. I don’t think that exaggeration of the problem is helpful and it is compounded by the third quote which compares lecture capture, in which the academic is aware it is happening and is able to opt-out for a variety of reasons, with covert surveillance.

On page 30, is it acknowledged that:

“Some of the policies canvassed in our survey had positive approaches to such scenarios. For instance, Cardiff University asserted that “these lectures are taped to support student learning” and stated that any other use had to be discussed and agreed to. Cardiff, Brunel, Kings College London, Liverpool, Manchester, Queen Mary London and Sheffield explicitly stated in their policies that they did not use recordings for performance management” (p30).

I’d argue that on the second to last page and without the actual numbers for context this isn’t enough and isn’t accurately reflecting the current policy situation. 

3       The impact on teaching

“What effect does surveillance have on the ability of lecturers to teach freely and to lead students into 

controversial and perhaps challenging debates?” (p10)

This is a legitimate question to raise and I think that it is worthy of future research but I also think it would be worth highlighting at this point that many policies include an opt-out clause that highlights this, for example at the University of Aberdeen: “Staff should record all lectures unless there is a particular reason not to. Opt out may be appropriate if a large part of the lecture: Contains confidential or personal information; Is commercially or politically sensitive; Includes such a degree of interaction with students that recording is not viable; or Is delivered in a way that makes recording unsuitable.”

We should be encouraging policies that make such statements, rather than reinforcing the belief that lecture capture is being used to stifle creativity, debate, and pedagogical effectiveness. 

4       Lecture capture policies

Finally:

“…we recommend – though this may be seen as unduly radical in its restriction of business freedom – that universities should not implement lecture capture policies at all, even for wholly beneficial motives, without obtaining the specific and informed consent of the lecturers whose personal data is captured and processed.” (p30)

This bit I just don’t understand. Policies can be written that safeguard against all the concerns noted in the paper by being clear and explicit about how and when recordings should be used and for what purpose (which is what we argue in Nordmann and McGeorge, 2018, and is what already exists in many institutions). The way this is phrased sounds like a call to refuse to use lecture capture, perhaps that’s my misreading, but if we’re ever going to move forward with lecture capture, we need to be able to separate fears from reality and highlight examples of good practice with recommendations for how all institutions can improve.

Authors’ response

Given that the authors themselves directed me towards the paper I thought that it was only fair and polite to let them see my blog before publishing and to give them the opportunity to respond. Peer-review can be frustrating enough when it is asked for, never mind when it appears unsolicited in your inbox on a Wednesday afternoon, so whilst I might not agree with the authors on the topic of lecture capture, I’d like to take the opportunity to say that I do have a great deal of respect for the fact that they responded and were happy to have the response included in this blog.

Our paper intends to highlight the evolution of employee surveillance. Technologies may originally be implemented in the workplace for good reasons but are subject to being repurposed and misused. You will note that our paper is titled ‘The Road to Surveillance is Paved with Good Intentions’. However, many surveillance technologies implemented in the workplace are used for purposes not originally envisaged and in a manner that infringes our fundamental rights. Lecture capture is just one example of the ongoing evolution of employee surveillance.

The use of surveillance technology in universities is becoming ‘normalised’. For example, universities are monitoring students by placing devices under their desks <http://www.thenationalstudent.com/Student/2017-05-25/the_university_of_glasgow_installed_surveillance_equipment_under_postgraduate_desks.html> and ‘anonymously’ monitoring room occupancy, <https://twitter.com/lauramartin_95/status/1047083262781337601> without prior warning or consent. Our paper highlights the ease in which surveillance technologies are used beyond their original purpose (i.e to constitute performance monitoring).

Although we can provide guidance and policies on lecture capture, institutions have ignored their own policies and continue to use surveillance technology in a way that breaches fundamental rights. From our survey at least six universities broke the strike using lecture capture: Edinburgh, Stirling, Newcastle, Nottingham, LSHTM, Warwick. All of these were in violation of policy. In particular, the Warwick policy was designed to prevent the use of lecture capture to break strikes. As approximately 10% (6/61) universities on strike breached their own policy on lecture capture, we question the effectiveness of policy and guidance. It is not only data protection and privacy that are violated when recorded lectures are repurposed. For example York and Nottingham have policies that would permit the redistribution of material without attribution.

Our final statement is that lecture capture should not be imposed without specific consent; this is in fact the same point as made in your blog post. We believe that employees should be made aware of the extent of surveillance at work and of the potential for scope creep, especially when fundamental rights are at stake.

I am thankful for the authors’ response and I agree that if policies were violated then this is indeed worrying. However, I would reiterate my first point which is that I am still yet to see the evidence. I think that in an academic paper that many people may use to make decisions about their pedagogy, it is not acceptable to make these claims without showing the evidence that allows the reader to understand exactly what happened and on what scale. 

References

Edwards, L., Martin, L., & Henderson, T. (2018). Employee Surveillance: The Road to Surveillance is Paved with Good Intentions. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3234382

Nordmann, E., Calder, C., Bishop, P., Irwin, A., & Comber, D. (in press). Turn up, tune in, don’t drop out: The relationship between lecture attendance, use of lecture recordings, and achievement at different levels of study. Higher Education. https://doi.org/10.1007/s10734-018-0320-8

Nordmann, E., & Mcgeorge, P. (2018). Lecture capture in higher education: time to learn from the learners. https://doi.org/10.31234/osf.io/ux29v