PrivacyCore_ad_300x250-01
MetaCompliance_Webcon
IAPP_Salary-Survey_300x250_FINAL

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

Comments

If you want to comment on this post, you need to login.

Related

Board of Directors

See the esteemed group of leaders shaping the future of the IAPP.

Contact Us

Need someone to talk to? We’re here for you.

IAPP Staff

Looking for someone specific? Visit the staff directory.

Learn more about the IAPP»

Daily Dashboard

The day’s top stories from around the world

Privacy Perspectives

Where the real conversations in privacy happen

The Privacy Advisor

Original reporting and feature articles on the latest privacy developments

Privacy Tracker

Alerts and legal analysis of legislative trends

Privacy Tech

Exploring the technology of privacy

Canada Dashboard Digest

A roundup of the top Canadian privacy news

Europe Data Protection Digest

A roundup of the top European data protection news

Asia-Pacific Dashboard Digest

A roundup of the top privacy news from the Asia-Pacific region

Latin America Dashboard Digest

A roundup of the top privacy news from Latin America

IAPP Westin Research Center

Original works. Groundbreaking research. Emerging scholars.

Get more News »

IAPP Communities

Meet locally with privacy pros, dive deep into specialized topics or connect over common interests. Find your Community in KnowledgeNet Chapters, Sections and Affinity Groups.

IAPP Job Board

Looking for a new challenge, or need to hire your next privacy pro? The IAPP Job Board is the answer.

Join the Privacy List

Have ideas? Need advice? Subscribe to the Privacy List. It’s crowdsourcing, with an exceptional crowd.

Find a KnowledgeNet Chapter Near You

Talk privacy and network with local members at IAPP KnowledgeNet Chapter meetings, taking place worldwide.

Find more ways to Connect »

Find a Privacy Training Class

Two-day privacy training classes are held around the world. See the complete schedule now.

The Privacy Core™ Library Has Evolved

Privacy Core™ e-learning essentials just expanded to include seven new units for marketers. Keep your data safe and your staff in the know!

Online Privacy Training

Build your knowledge. The privacy know-how you need is just a click away.

Upcoming Web Conferences

See our list of upcoming web conferences. Just log on, listen in and learn!

Train Your Team

Get your team up to speed on privacy by bringing IAPP training to your organization.

Let’s Get You DPO Ready

There’s no better time to train than right now! We have all the resources you need to meet the challenges of the GDPR.

Learn more »

CIPP Certification

The global standard for the go-to person for privacy laws, regulations and frameworks

CIPM Certification

The first and only privacy certification for professionals who manage day-to-day operations

CIPT Certification

The industry benchmark for IT professionals worldwide to validate their knowledge of privacy requirements

FIP Designation

Recognizing the advanced knowledge and issue-spotting skills a privacy pro must attain in today’s complex world of data privacy.

Certify Your Staff

Find out how you can bring the world’s only globally recognized privacy certification to a group in your organization.

CIPP/E + CIPM = DPO

The IAPP’S CIPP/E and CIPM are the ANSI/ISO-accredited, industry-recognized combination for DPO readiness. Learn more today.

Learn more about IAPP certification »

Are You Ready for the GDPR?

Check out the IAPP's EU Data Protection Reform page for all the tools and resources you need.

IAPP-OneTrust PIA Platform

New U.S. Government Agency privacy impact assessments - free to IAPP members!

IAPP Communities

Meet locally with privacy pros, dive deep into specialized topics or connect over common interests. Find your Community in KnowledgeNet Chapters, Sections and Affinity Groups.

Privacy Vendor List

Find a privacy vendor to meet your needs with our filterable list of global service providers.

More Resources »

Europe Data Protection Intensive 2017

The Intensive is sold out! But cancellations do happen—so hurry and get on the wait list in case more seats become available.

Global Privacy Summit 2017

The world’s premier privacy conference returns with the sharpest minds, unparalleled programs and preeminent networking opportunities.

Canada Privacy Symposium 2017

The Symposium returns to Toronto this spring and registration has opened! Take advantage of Early Bird rates and join your fellow privacy pros for another stellar program.

The Privacy Bar Section Forum 2017

The Privacy Bar Section Forum returns to Washington, DC April 21, delivering renowned keynote speakers and a distinguished panel of legal and privacy experts.

Asia Privacy Forum 2017

The Forum returns to Singapore for exclusive networking and intensive education on data protection trends and challenges in the Asia Pacific region. Call for Speakers open!

Privacy. Security. Risk. 2017

This year, we're bringing P.S.R. to San Diego. The Call for Speakers is now open. Submit today and be a part of something big! Submission deadline: February 26.

Europe Data Protection Congress 2017

European policy debate, multi-level strategic thinking and thought-provoking discussion. The Call for Speakers is open until March 19.

Sponsor an Event

Increase visibility for your organization—check out sponsorship opportunities today.

More Conferences »

Become a Member

Start taking advantage of the many IAPP member benefits today

Corporate Members

See our list of high-profile corporate members—and find out why you should become one, too

Renew Your Membership

Don’t miss out for a minute—continue accessing your benefits

Join the IAPP»