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Momentum Builds for Federal Educational Privacy Legislation

i May 20th No Comments by

Momentum for Federal legislation to safeguard the privacy of student records is gaining steam.  Presently there are a number of bills working their way through Congress.  One draft proposal from the Education & the Workforce Committee of the United States House of Representatives aims to rewrite the Family Educational Rights and Privacy Act (“FERPA”).  The contemplated bill (note an actual bill has yet to be introduced) would include redefining what constitutes an “educational record” and would ban using educational records for marketing or advertising.  In addition, the bill would provide requirements for contracting with vendors who would handle educational records, would allow parents additional authority to access and amend their child’s educational information and would enable parents to have their child opt-out of having their information shared for some purposes.

In addition to revamping FERPA, Federal legislators are considering additional bills to safeguard student privacy, including the Student Digital Privacy and Parental Rights Act of 2015, which was introduced by United States Representatives, Luke Messer (R-IN) and Jared Polis (D-CO).  The proposed legislation would prohibit operators of websites, apps and other online services from targeting advertising to students, from selling student information to third-parties and from creating a personal profile on a student for a non-educational purpose.  In addition, the bill would provide additional authority to parents to control the information that schools and third-party services hold on their children, including the ability to delete a child’s information when the information is no longer needed.  At the same time, the bill is intended to encourage innovation by allowing operators of websites, apps and other online services to use student information for student learning purposes and to improve their own products.  Enforcement authority over the legislation would be granted to the Federal Trade Commission.

Congressman Polis explained the need for the legislation by stating, “The status quo surrounding the protection of our student’s data is entirely unacceptable.  It’s like the Wild Wild West – there are few regulations protecting student’s privacy and parental rights, and the ones that do exist were written in an age before smartphones and tablets.  Our bipartisan bill is a much-needed first step in providing a framework that can address these concerns of parents and educators while at the same time allowing for the promise of education technology to transform our schools.

Lastly, this past week Senator David Vitter from Louisiana introduced the Student Privacy Protection Act.  While the details of the introduced legislation has yet to be fully revealed, Sen. Vitter’s press release provides some clues on the bill.  The press release indicates that the proposed legislation will:

  • Reinstate protections originally outlined under the Family Educational Rights and Privacy Act (FERPA) by clarifying who can access student data and what information is accessible.
  • Require educational agencies to gain prior consent from students or parents and implement measures to ensure records remain private.  Any educational agency, school, or third party that fails to get consent will be held liable through monetary fines.
  • Extend FERPA’s protections to ensure records of homeschooled students are treated equally.
  • Prohibit educational agencies, schools, and the Secretary of Education from including personally identifiable information obtained from federal or state agencies through data matches in student data.

Even with gridlock in Washington, it seems that protecting the privacy of student information has bipartisan support.  For this reason, with all the privacy legislation being presently proposed, it appears that some compromised legislation on student privacy may actually have a chance of being passed into law sometime this year.

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