By Steven McDonald
Earlier this year, the Department of Education issued a number of proposed amendments to the regulations implementing the Family Educational Rights and Privacy Act (FERPA), the primary statute governing the privacy of student records. Educational institutions should review these proposed amendments and begin to plan for the changes that will be necessary to implement them.
Among the most significant changes, the proposed amendments would:
- Significantly restructure and clarify the definition of what is considered "personally identifiable information" for purposes of FERPA. The definition would now expressly include a student's "biometric record," "[o]ther indirect identifiers, such as date of birth, place of birth, and mother's maiden name," "[o]ther information that, alone or in combination, is linked or linkable to a specific student," and "[i]nformation requested by a person who the educational agency or institution reasonably believes has direct, personal knowledge of the identity of the student to whom the education record directly relates."
- Expressly prohibit educational institutions from treating social security and student identification numbers as "directory information" that can be disclosed without consent. An institution could disclose as directory information a "student's user ID or other unique personal identifier used by the student for purposes of accessing or communicating in electronic systems, but only if the electronic identifier cannot be used to gain access to education records except when used in conjunction with one or more factors that authenticate the user's identity, such as a personal identification number (PIN), password, or other factor known or possessed only by the authorized user."
- Clarify the circumstances in which student education records may be disclosed in connection with "outsourcing." An institution would be permitted to make such disclosures to "contractors, consultants, volunteers, and other outside parties to whom [it] has outsourced institutional services or functions" that it "would otherwise use employees" to perform, provided that those outside parties remain under the institution's "direct control" and are subject to the same requirements concerning the use and redisclosure of education records as the institution's own employees.
- Establish standards for "de-identifying" student education records so that they may be disclosed without consent, either individually or as part of data sets.
- Require institutions to use "reasonable methods to identify and authenticate the identity of parents, students, school officials, and any other parties to whom" they disclose student education records or personally identifiable information from student education records. In general, methods will be considered "reasonable" if "they reduce the risk of unauthorized disclosure to a level that is commensurate with the likely threat and potential harm," taking into account a "variety of factors, including the organization's size and resources."
- Require institutions to use "reasonable methods," including administrative, physical, and/or technological controls, to safeguard student education records, "especially in electronic systems," and to prevent authorized access from being misused. An "may use any method, combination of methods, or technologies it determines to be reasonable, taking into consideration the size, complexity, and resources available to the institution; the context of the information; the type of information to be protected (such as Social Security numbers or directory information); and methods used by other institutions in similar circumstances."
- Clarify that FERPA is not a "data breach notification" statute.
- Establish new interpretations and standards for a number of the exceptions permitting nonconsensual disclosure, including in particular the "health or safety emergency" exception and the exception authorizing disclosure to other schools in connection with a student's transfer.
The department received numerous comments on its proposals, is reviewing them, and currently anticipates issuing final regulations by the end of the year. While it will not be possible to finalize plans until then, institutions would do well to begin thinking about the following in the meantime
- What changes they will need or want to make to their lists of designated "directory information."
- What changes they will need to make to their required annual notices of FERPA rights and to their vendor contracts in order to implement the new "outsourcing" provisions.
- Whether their existing security and authentication standards are adequate, and whether their existing electronic systems will need to be modified.
- How to communicate the new requirements to appropriate campus personnel.
Steven McDonald is general counsel at the Rhode Island School of Design. Prior to that he served as associate legal counsel at Ohio State University.He has handled a number of Internet-related legal matters, ranging from alleged infringements of copyrighted materials on student web pages to investigations of computer break-ins to an e-mail death threat to Socks the cat. He began his legal career in private practice at Jones, Day, Reavis & Pogue, where he represented CompuServe in Cubby v. CompuServe, the first online libel case, and he also has taught courses in Internet law at Ohio State's College of Law and at Capital University Law School.