Instructor listening in secretly in simulated intake assignment -- allowed? Ethical?

Question

I am in an online, accredited, public, post-baccalaureate degree program. I think it's the first time my instructor is teaching a university course -- at least at this institution.

The instructor said he had found someone to play the part of a potential client. We were supposed to have a simulated phone intake call with this person. She would give us her basic demographic information and the reason she was seeking legal and advocacy services, and we were supposed to probe for more information about the problem she was seeking help with, because the pretend client had been instructed not to volunteer all the important information on her own. We were to fill out an Excel template and then write a letter to the client.

The instructor provided feedback for my homework. When I read his response, I eventually came to understand that he had listened in secretly to the phone intake call. He had not made clear in the instructions that he would be listening in.

This made me uncomfortable. But I don't know if my reaction is reasonable. Are there any typical institutional guidelines, or ethical considerations, that would help me figure this out? I'm not sure whether this is something to let the program chair know about, or whether I need to adjust my own expectations.

I did let the instructor know a polite version of how I felt: "I hope that for future semesters you'll make clear that you'll be listening in on the call.  I, for one, would be more comfortable knowing this ahead of time."  The response: "I don't find this necessary.  It should be presumed I am listening in on the assignment I provided so I can accurately grade." Note, I don't know why he didn't just play the part of the potential client himself....

Further clarification:

• The school is in New York State (part of the SUNY system). From the exchange we had, I'm confident he only listened, and didn't record.
• I thought we would be evaluated and graded on the written submission (spreadsheet plus letter) only.
• I am asking about what's generally allowed or considered ethical by university policy or relevant professional organizations. Less interested in quasi-legal advice.
• I checked with a classmate. He didn't realize the instructor would be listening in either. He himself wasn't bothered but understood why I was.

Answer 1

I have to side with your professor here. You did not have a private phone conversation. You had a simulated conversation with a person you knew to be a fake client with the purpose of evaluating your skill. If the professor listens in to the conversation that means he will evaluate you himself instead of relying on the person he got to play the potential client. This is good for you.

I honestly don't see what the problem is, you did something that you knew to be a test, so your professor gets to see/hear it to evaluate you. If instead of doing this over the phone this would have been a live interview, would you feel different about your professor listining in?

Answer 2

This is bizarre and unorthodox to say the least. It also raises some pretty serious legal issues. Specifically, if you live in one of the eleven “two-party consent states”, what the instructor did was illegal. According to this article (emphasis added):

In the context of recording conversations, the states in our country are divided as either “one party consent” states or “two party consent” states. A “one party consent” state a makes it a crime to record or eavesdrop on an in-person or telephone conversation unless one party to the conversation consents. A “two party consent” state makes it a crime to record or eavesdrop on a conversation, including a private in-person communication or telephone call, without the consent of all parties to the conversation. Most states, like New Jersey, New York and Texas are “one party consent” states. Eleven states, including California, Massachusetts, Florida and Pennsylvania are “two party consent” states.

This link seems to have a list of the eleven states. Unlike the first article I quoted, it only talks about recording a conversation rather than eavesdropping/listening in, so I’d rather not quote the list and risk misleading people. Also, for some of the states it seems like there are further distinctions depending on the manner in which the recording was made and perhaps other details.

Now, if the phone conversation took place in a “one-party consent state” then what the instructor did was likely not illegal. Nonetheless, from a university instructor one can expect a much higher standard of behavior and ethics than the minimum required by law. It seems to me that given that this stunt would be illegal in much of the country, you would be quite reasonable to complain about the instructor’s behavior. Even if he is not found to have violated any policies (probably because no one had ever even imagined that such a policy was necessary), once the behavior is scrutinized I would fully expect him to be forbidden from ever pulling such a trick again.

Disclaimer: I am not a lawyer and cannot vouch for the accuracy of the legal information in the articles I linked to.

---

Edit: some people are saying in comments and other answers that OP should have had no “expectation of privacy” during the call, that they don’t see “a meaningful ethical distinction” between listening in and getting a report from the actor, and that they “honestly don’t see what the problem is”. Fine; I have no strong disagreement with any of these statements, and actually started drafting an answer saying some similar things before posting the current answer. But I’m amazed that so many people are ignoring the very serious legal issues here. OP seems to live in New York, a one-party consent state, so the instructor might have escaped an accusation of outright breaking the law (to be precise, committing a crime) in this situation. But what if OP happened to be visiting a friend in nearby Massachusetts while they were making the phone call? The instructor’s behavior might (IANAL) instantly turn into a crime.

Imagine you are a university administrator considering OP’s complaint regarding the instructor’s behavior. Knowing that the instructor is treading on some dangerous legal ground, would you really think even for a second that the legal risk and potential liabilities he is putting your university in are acceptable? (Not to mention in a situation when there is no discernible academic benefit that comes from this surreptitious phone call eavesdropping strategy.) Yes, the instructor might come up with some arguments in defense of his behavior involving expectation of privacy or whatnot. But seriously, who wants to have to even go there? Isn’t it much easier to just inform the students of what’s going on instead of having to plan how you will argue your way out of this messy legal situation if someone decides to make a fuss?

Note that I didn’t say the instructor was behaving unethically - he may or may not have been, I haven’t really thought deeply about that question. But the legal issues make it unnecessary to even consider that aspect of the question. No sane university would allow an instructor to adopt such legally fraught assessment methods. It’s highly inappropriate and needlessly risky. I’m not saying they should punish the instructor or anything. OP should report their concerns and point out the legal issues as well as the fact that they were made to feel uncomfortable by the incident. My guess is the practice would be discontinued quietly, and everyone will move on with their lives.

Answer 3

Thanks to comments made by Daniel and Nick, I found some better google search terms. Here's what I found. Even though my course wasn't remotely in the field of psychology, this does seem helpful: The American Psychological Association's "Ethical Principles of Psychologists and Code of Conduct," which states:

7.06 Assessing Student and Supervisee Performance (a) In academic and supervisory relationships, psychologists establish a timely and specific process for providing feedback to students and supervisees. Information regarding the process is provided to the student at the beginning of supervision.

(b) Psychologists evaluate students and supervisees on the basis of their actual performance on relevant and established program requirements.

I found an ethics explanation of that section in "ETHICS ROUNDS: The supervisor as gatekeeper: Reflections on Ethical Standards 7.02, 7.04, 7.05, 7.06 and 10.01" by Dr. Stephen Behnke, APA Ethics Director:

Ethical Standard 7.06 gives supervisors both the discretion to determine how best to assess a supervisee's performance, and the responsibility to make clear to the supervisee how the "timely and specific" process of assessment will work.

Dan's use of the word surreptitious also enriched my internet searching. Here's something about ethics -- again, in the field of psychology: "Statement on Third Party Observers in Psychological Testing and Assessment: A Framework for Decision Making," Committee on Psychological Tests and Assessment American Psychological Association:

Although surreptitious observation and recording (in which the examinee is unaware of the observation) may minimize the examinee’s reactivity to observation, surreptitious surveillance may also raise ethical (e.g., APA, 2002; AERA, APA, NCME, 1999) and legal issues regarding the psychologist’s obligation to disclose to the examinee the fact that the session is being observed or recorded and the identity of individuals who may have access to the observation or recording.

Answer 4

I think what bothers us most perhaps is that the instant case is so similar to the usual case, wherein there is a real client on a normal phone call and there IS a reasonable expectation of privacy and listening in like this would be illegal - especially as it is apropos seeking legal advice and thus would be covered by attorney-client privilege. Also, we’re so used to receiving notice that a call is being recorded or monitored (as at the start of most customer service calls) that when one is monitored or recorded without notice it feels like it must be have been illegal.

So I think the OP is right to be bothered, but what the professor is doing is OK, legally AND ethically. But it takes a lot of thought/ analysis to see this. And the upsides of adding a standard “this call may be monitored or recorded for quality analysis purposes” announcement at the start of each call far outweigh the downsides. (It seems he’s after realism since he’s not pretending to be the client himself and such an announcement would just add to that realism. )

To support my legal claims, let’s look at the

California law , which states in part:

(c) For the purposes of this section, “confidential communication” means any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive, or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.

Only listening in on or recording “confidential communication” is barred.

(d) Except as proof in an action or prosecution for violation of this section, evidence obtained as a result of eavesdropping upon or recording a confidential communication in violation of this section is not admissible in any judicial, administrative, legislative, or other proceeding. Section d is OT, but interesting.

There’s another reason I quote California law in the first place. Because the currently second highest rated answer incorrectly states this:

Specifically, if you live in one of the eleven “two-party consent states”, what the instructor did was illegal.

I think what the prof did is not illegal for students in California or other two party US states. Why? Because under these very specific circumstances (including because it’s a test, with fake info, and not a normal call) I don’t think there was a reasonable expectation of privacy, even though it was an actual phone call over the highly regulated POTS. (I recall a shocking MINORITY SCOTUS opinion that claimed an extremely narrow definition of expectation of privacy, apropos listening in to a cordless phone conversation ... but it was only minority a opinion*)

*excerpt:

CALLAHAN, J., dissenting: I respectfully dissent from the majority opinion. I do not believe that the broadcast of radio waves into public airspace constitutes a "wire communication". ... wiretap statutes, that the radio wave segment of cordless telephone communications cover all communications that, at some point, are carried over telephone lines.

It's shocking and frightening because in it, a SCOTUS Justice is doing what I see justices so often do: make claims that clearly conflict with the plain language of statute. In this case: "DEFINITIONS. The following words and phrases, as used in this chapter, shall have the following meanings, unless the context otherwise requires: "(1) `Wire communication' means any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of telephone or telegraph between the point of origin and the point of reception furnished or operated by any person engaged as a common carrier in providing or operating such facilities for the transmission of intrastate, interstate or foreign communications."

Answer 5

I'd like to tackle a point of view that IMHO hasn't gotten the attention it deserves so far.

• Leaving legal aspects aside, IMHO transparency about exam procedure is very important for a good and healthy student - teacher relationship.
  The lack of transparency, but even more importantly refusing to announce the exam mode in future IMHO seriously undermines the possibility of a trusting relationship.
  I'd certainly expect any kind of bad surprise in future dealings with such an examiner, and in my mind mark them as sneaky, underhand and potentially backstabbing.
  (My culture has a reputation of being blunt and rude [we call it direct and truthful] - and we sometimes judge behaviour as backstabbing that is considered a polite white lie in other places. However, I utterly fail to see any polite intentions here - whereas I can usually see the politeness aspect with the white lies)

• Also, "should be presumed" sounds to me like a recipe for disaster in any kind of consulting I'm familiar with. So in this particular case, it is a bad role model for the situation that is examined.

• It is not obvious to me that listening in is to be expected as several modes of exam are thinkable, including a mode where the actual call simulation is graded indirectly at best (just as in a written exam text understanding is only indirectly graded).

  1. The exam could be formulated in a way that a pre-specified set of important points which you are supposed to extract and write down is compared with your notes, and you get marks for the correctly retrieved information.
     Sure, that would leave no possibility to grade whether you guess right or did in fact ask, but the student is not responsible for bad design of the exam, and many exams in fact do not distinguish whether the answer guessed right or concluded right.
  2. The grading could be done in two parts: the notes by the professor and the phone call by the "actor".
  3. Professor grades your notes and takes also the actor's notes into account.
     Again, not so good due to possible chinese whisper losses.
  4. As it happened, by the professor listening in.

  IMHO the actual mode of the exam should be clearly announced in any case. Sure a student may realize the situation is ambiguous beforehand and ask, but I'd say that as less intrusive exam modes are perferctly thinkable (1st option) and deviation should be clearly announced.

  I really don't think this is different from announcing that the written exam will be 3 hours and books are allowed.

• There are situations (scientific studies) where the subject being influenced by knowing in which way they are studied can influence the result. I.e. there is a trade-off between transparency to the subject and reliability of the results. For such studies, a review by an ethical committee is anyways needed so the subject can rely on a third party having checked that the procedure is ethical.
  In the case of the exam, no such 3rd party check has been done, and without being a psychologist I'expect that the main reasons for changed behaviour in those psychological studies are similar or related to "being examined". In the case of an exam, you know that you are examined. It's hard to argue that not telling you how exactly you are examined will make you act more naturally in this situation. I therefore don't see any drawback to being transparent about what, how and by whom the grading is done.

---

Further thoughts about the situation.

• My cultural background: here, not only recording without everyone's consent but also listening into a phone call is plain illegal, even if the phone call is between two neighbor rooms of the same institute.
  If you put the phone into speakerphone mode, it is customary here to announce this to the other side even if there's noone around to listen in.

• I've once met a situation where we weren't told when exactly we wrote the exam. However, we were told in advance:

  • That we'd write the exam without knowing as it would just look like the usual in-class excercises, and
  • that the reason for this was that the teacher had the experience that knowing "this is the exam" made people nervous and caused more mistakes (this was an eving course on touch typing with many attendees not being used to exams any more since they had finished school long ago - but the results were important for their job prospects).
  • I'm sure that had anyone requested to know when they have their exam, they'd have been offered a separate, announced occasion for their exam.

• While I never had a simulated phone call exam, when I had oral exams and if anyone else in addition to the examiner was around, the thing started with a formal introduction of the 3rd party "This is XY, who is going to write the protocol." I also had: "This is XY, who is going to start writing the protocol. At some point I'll take over the protocol and XY is going to ask - this is part of XY's preparation for becoming a professor."

  Also, there was never a secret who did the grading: "Please leave the room for a few minutes while we decide on your mark. We'll then call you in."

  I'd say this very clear transparency also has the purpose to lower the examinee's nervousness (if possible): it communicates "I am clear and open, I will not spring surprises at you, you can trust me." After all, the purpose of the exam is grade your proficiency with the subject matter, not your grasp on yourself wrt. exam psychology.

Answer 6

Because of the situation, normal (legal) rules do not apply to this, no matter what State you're in. At all. This call, in no way, would be considered a private call, and the instructor has every right to listen-in, whether you've been notified or not. If you inform the dept. Chair he/she will tell you the same.

Answer 7

It doesn't surprise me. This was a simulation where the professor is evaluating you. How would you expect them to evaluate you if they weren't listening in?

There is no reasonable expectation of privacy in college. The school I went to has access to everything. Your school calendar/email. They use the InterviewStream system and administrators can access everything you do on there. When you apply for a job through them they can see that. When you scan your student id to enter a building they can see that. Even the software you download from them is connected to their systems. They spy on everything you do.

They control every process. They're always testing and evaluating you. They determine who succeeds and who fails. They control the registration process. If you're deemed unworthy and someone wants you to fail they can ensure your failure by giving you an 'impossible task' or in this case an impossible course load. It's not just about grades.

You're gonna have a hard time when you get into the workforce because employers pull tricks like this all the time. If you work in a call center environment there's always somebody listening in or recording the calls for 'quality assurance'. Even before they hire you they'll spy on you using electronic resources, applicant tracking, social media, spyware, hacking or they'll send someone into your current place of employment. That's the 'background check' especially when nothing shows up in a records check. It feels sketchy but hiring is risky business and the company has a reputation to uphold. They gotta protect themselves and make sure everyone they hire is on their best behavior.

Wouldn't you do the same if that were your company or you were managing the department? The most successful companies and managers do. If you want to be successful you gotta be ruthless and unforgiving. Drain the swamp. Get rid of the people who are yelling, picking fights, arguing with customers, being rude and providing extremely poor customer service and replace them with better people.