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With recent news that inBloom has shut down its services and about widespread, large-scale data breaches involving universities and school districts, student privacy has become a hot-button issue. That sentiment was clear on Wednesday at a joint House subcommittee hearing on how data mining threatens student privacy.

Overall, there was quite a bit of agreement between policy-makers, researchers, regulators and industry on moving forward with student privacy issues, but panelists did not agree on the existing scope of the Family Educational Rights and Privacy Act (FERPA) and whether a federal mandate updating the statute is necessary. There also appears to be disagreement over how student data is shared and used among third parties and who actually owns the collected data, as well as concern over the lack of legal counsel for many school districts when signing contracts with those third parties.

Citing his recently co-led study on Privacy and Cloud Computing in Public Schools, Fordham University School of Law Prof. Joel Reidenberg testified that while 95 percent of school districts rely on cloud services for a diverse range of functions, less than seven percent of the contracts signed with vendors restrict sale of the data to third-party marketers.

And though at least three federal statutes apply to students and children in the U.S.—FERPA, the Children’s Online Privacy Protection Act and the Pupil Privacy Protection Amendment—there are still gaps preventing the protection of student data, he noted. “Federal education privacy laws fail to protect student information,” Reidenberg said, arguing FERPA only applies to educational organizations, not to vendors, and more narrowly, the Supreme Court has ruled that educational records—which are covered by FERPA—would be characterized as “what could be held in a principle’s file cabinet,” which would not include data such as height and weight.

Fordham Law Prof. Joel Reidenberg.

But Software and Information Industry Association (SIIA) Vice President of Public Policy Mark MacCarthy strongly disagreed with Reidenberg on FERPA’s scope, arguing it requires that “identifying information shared with service providers must be used solely for institutional services and only for educational purposes.” He added, “The bottom line is that if an outside party wants to use data for noneducational purposes, then they are required by law to get consent.”

Rep. Phil Roe (R-TN) asked Reidenberg whether student data is being used to market to students.

“The simple answer is probably yes, but it’s complicated,” he answered, adding, “We don’t have any evidence on actual marketing practices right now” and that there’s “no way to know what the actual marketing practices are.”

MacCarthy argued that the lack of evidence is proof “it’s not the Wild West out there.” He did concede, however, that the contracting issues—notably raised by Reidenberg—could be an area of weakness the industry is willing to help improve. “We owe Joel a debt of gratitude,” MacCarthy said, “for pointing out their weaknesses.”

Contracts between school districts and third-party vendors for a vast array of services—software for personalized student learning, administrative tracking, cloud computing, portals between teachers and parents and many others—are often the last line of defense protecting student data. Reidenberg pointed out that with no private right of action under FERPA, contracts are the one means for districts to govern how the data is handled.

“School districts seem to be winging it when it comes to these contracts,” said Reidenberg.

Alarmingly, he said, “We found, in asking school districts, that it was difficult to find someone on a district’s staff who knew where the data is,” and he also noted that the kinds of data outsourcing “are so complex that it’s difficult to figure out where the information is going” and who owns it. “We don’t see contracts spelling out that districts are truly owning the data,” he noted.

“That’s where the rubber meets the road for me,” said Subcommittee on Cybersecurity, Infrastructure Protection and Security Technologies Chairman Patrick Meehan (R-PA). “There’s some third-party vendor out there that knows a lot more about my child than I do. Suppose that gets collected by someone who would decide whether to hire that person later down the road.”

We’re at a point when we need to modernize FERPA.

Prof. Joel Reidenberg

Plus, the rise in data breaches and cyber-theft has many in education worried about data security and breach notification obligations. Reidenberg said most contracts do not require vendors to notify districts of a breach.

To illustrate one state law that has gained support by some in the student privacy community, Idaho State Department of Education Chief Information Officer Joyce Popp discussed her work on SB 1372. She said the legislation clearly points out what data should be collected, addresses a monetary penalty for breaches and outlines some of the information that should be included in contracts.

Popp also said staff awareness and training are crucial, and school boards in Idaho have legal counsel to help with contracts. “Doing diligent training on what a good contract looks like is key to making this work,” she said.

“We like the approach,” said the SIIA’s MacCarthy. “Transparency is a key element. We need to tell parents what information is being collected, what’s done with it, who it’s shared with, notification and security,” he said, adding, “Model policies at the state level is something industry supports, and we encourage that level of involvement by states.”

For Reidenberg, a state-by-state approach is not enough. “We’re at a point when we need to modernize FERPA.”

And though the benefits of these student-tracking and cloud technologies were clearly agreed upon by all of the panelists, Rep. Meehan reminded attendees that FERPA was written in 1974, long before the technology that now permeates the modern classroom was implemented.

That the classroom has been modernized is inarguable. Lawmakers must now decide whether it’s possible that FERPA has kept pace.

Written By

Jedidiah Bracy, CIPP/E, CIPP/US

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