ED considers new guidance on student privacy as the result of joint workshop

The U.S. Education Department and the Federal Trade Commission are mulling whether to issue new or updated guidance on the Family Educational Rights and Privacy Act and the Children’s Online Privacy Protection Act to clarify under what circumstances it is appropriate to let schools provide consent on behalf of parents and when to allow third parties to collect student information.

Those were among several topics discussed at a recent workshop held in Washington by both agencies in an effort to glean insights about compliance to both federal laws.

“COPPA, and even more so FERPA, were enacted in a different world than what we have today, technologically speaking at least,” said Priscilla M. Regan, professor of the Schar School of Policy and Government at George Mason University.

She has researched privacy since the late 1970s and says it is, undoubtedly, a thornier issue today due to technology.

‘Practical obscurity’

Regan said there are six main concerns about ed-tech that relate to privacy, with the primary concern being “the classic information privacy concern” — the collection, use, retention, and disclosure of personal information by schools and third parties.

Protecting that information is more challenging in this age because more information is being collected, and a different quality of information is being requested, she said.

The second concern is the ability for students to remain anonymous in education settings — what’s called “practical obscurity,” she said. Anonymity is nearly impossible thanks to algorithmic searches that seek out information that is collected and retained by third parties, Regan said.

The third issue is the surveillance and tracking that takes place when technologies are used in and outside the classroom, such as online testing and various computer learning programs and apps.

“The programs are monitoring and analyzing what the student is doing at that time; things like how long it takes to read a page or the patterns and ease in which students are reading and responding,” Regan said. “This gives some indication of the students’ thought processes,” which concern parents and other stakeholders.

A fourth concern has to do with student autonomy, she added.

“If information is being fed into predictive analytic programs that determine student’s patterns, strengths and weaknesses, and personalized learning — all of which have [their] advantages — it sort of tracks students or narrows students too quickly and [it can] foreclose options that students may have developed on their own,” she said. “If they’re aware of this, particularly in middle and high school, they may self-censor what they’re doing.”

The fifth problem that arises with the use of ed-tech is “traditional to due process,” Regan said. “When we’re taking about privacy, we’re really talking about fairness and treating people equally and they shouldn’t be discriminated against.

“With the algorithmic analysis that takes place, it can sometimes make identification of bias and discrimination difficult to identify and hard to reverse. I think there’s a concern that pre-judging students could lead to discrimination.”

Finally, a major concern is ownership of student information, and there is much debate about whether it is the individual or the third party, she explained.

In a school environment, generally school records are owned by the school under federal law, but FERPA ensures parental rights, she noted.

This makes contracts and their language especially crucial in identifying and clarifying, if needed, a vendor’s intentions regarding student data and how it obtains parental consent, she said.

Clarify agreements

Melissa Tebbenkamp, director of instructional technology at Raytown Quality Schools in Missouri, said there are numerous versions of privacy policies and Terms of Service “out there,” and the district has gotten savvier about working with vendors and getting buy-in from parents.

For instance, Raytown requires parents to sign an agreement each year to verify their awareness about which sites are used in schools for learning purposes. The local education agency also shares links on their webpage to sites that collect data.

“We know that it’s impossible for us to get parental consent from every one of our students and we urge our partners, our vendors, and our service providers to really work with us to protect the data,” she said.

Emily Ann Brown covers education technology and STEM education issues for LRP Publications.

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