What Would Proposed Changes to FERPA Mean for Edtech?

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On April 6, US Representatives John Kline and Bobby Scott offered up a draft of a bill that would overhaul FERPA, short for the Family Educational Rights and Privacy Act. By releasing the draft, the bipartisan leaders of the Education & the Workforce Committee hope to gather feedback from stakeholders before proposing it to the House.

FERPA, a federal law designed to protect student educational records, was enacted in 1974, and has not undergone significant revision in the 41 years since. “In the modern reality of classrooms and schools, we’re using information in ways we never have, and certainly weren’t when FERPA was written,” says Paige Kowalski, Vice President of policy at advocacy at the Data Quality Campaign, a nonprofit that works to promote effective use of student data.

Under the drafted changes, educational service providers that illegally share student information could be fined up to $500,000 (up to $2,000 per student).

The current draft expands the definition of an “educational record,” the personal information that follows a particular student. “Prior to this draft, educational record didn’t really encompass the kinds of information generated when students engage with online applications,” explains Kowalski. “The draft clarifies that educational agencies,” like schools or districts, “are now responsible for that information, and need to think more strategically about the kinds of agreements and contracts that they enter into.”

The draft also emphasizes transparency in how companies communicate their use of student data. Companies would be required to respond to requests for information from parents within 30 days (required response time is currently 45 days), and parents would have additional resources about how to opt-out of student data collection.

While Kowalski praises the clarity for families, she sees the increased opportunities for opting out as cause for concern. “Opt-out is feasible and makes sense when you’re talking about using the data in ways that it was never intended to be used,” like targeted advertising, she explains. “But districts talk about data in terms of the impact of a program, or development of a student information system—opting out makes the data set less valid, so it isn’t representative of the community any longer.” As she sees it, “at the end of the day, a district’s job is education for all students, and [extensive opting out] ties their hands behind their backs.”

Kowalski would like to see the bill address the need to provide training for schools and districts. She sees the current draft as “asking them to take on burdens around contracts and security, with no provision or suggestion that folks handling PII (personally identifiable information) would need certain amounts of training.” This could pose a particularly large problem for poorer districts without the resources to hire or support staff attending to responsible data collection.

The draft proposal comes on the heels of more federal legislation regarding student data collection: the Student Digital Privacy and Parental Rights Act, championed by President Obama. “They cover the same types of information, but [the bill proposing changes to FERPA] puts the enforcement over at the Department of Education, rather than the FCC,” Kowalski explains. She hopes the two acts could support each other in building better infrastructure around handling student data.

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