Sending FERPA Back to School

Over the next couple of weeks, young people across the country will head back to school. Those students will have access to digital tools to supplement the effectiveness of their teachers. As students use a greater diversity of these technologies, it is important that parents, educators and technology companies understand the privacy implications of this new connected learning environment.

Privacy and security are fundamental components of innovation. Students are less likely to take risks, share controversial ideas, and push boundaries, if they feel that everything they do will be aggregated in databases about them and kept forever. By protecting against this tracking we can preserve for students what I like to refer to as the “Freedom to Learn”, while still allowing for the innovative use of data for education.  For this reason, the Future of Privacy Forum has launched the FERPA Sherpa website to share information about Education Privacy.  The website is a tremendous resource for students, parents and educators.

There is broad recognition that the Family Educational Rights and Privacy Act (FERPA) needs updating. FERPA was passed in 1974 at a time when “apps” were ordered at restaurants and “the cloud” was something that might spoil recess.  Senators Ed Markey and Orrin Hatch have introduced a bill to amend FERPA. This proposed law raises important issues and has valuable ideas of how to increase access to data, the security measures used to protect the data, and the requirement to delete the data when no longer needed by the educational institution. These modifications would improve FERPA, but would not fully modernize the law.

George Washington Law School Professor Daniel Solove has written about what needs to be changed in FERPA.  In addition to the issues addressed by the Markey-Hatch bill, Prof. Solove calls upon Congress to address issues around governance, enforcement, restrictions on sharing data, clarifying the definition of “legitimate educational interests”, covering non-students (parents, siblings), and provisions around de-identification.

Congressmen Jared Polis and Luke Messer are also showing leadership to explore these issues as part of their commitment to improving education and increasing the impact from technology in the schools. I was fortunate enough to participate in a panel they convened. The panel focused on the privacy and security issues created in the connected learning environment, and the burden it places on schools to properly protect student data. Panelists explored several mechanisms to help schools, including a need for educators to get better information on how to implement privacy programs. Resources such as the FERPA Sherpa website are impactful ways to make progress.  I look forward to continuing the dialogue on how to make further improvements.

Education is the best opportunity for, economic growth and personal empowerment. Technology will play an important role to help students reach higher levels of collaboration, creation and invention. Those benefits though will be muted if students have to fear that anything they say, think, or do will be captured forever to be used against them. As we drop off our children to meet their new teachers, let’s also take some time to consider how best to provide a policy environment that will increase their Freedom to Learn. Let’s send FERPA back to school.

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