Synopsis: Education Privacy Hearing—How Data Mining Threatens Student Privacy


Yesterday, the House of Representatives Education Subcommittee on Early Childhood, Elementary, and Secondary Education and the Homeland Security’s Subcommittee on Cybersecurity, Infrastructure Protection, and Security Technologies held a joint hearing to discuss “How Data Mining Threatens Student Privacy.”

Four witnesses presented testimony from a number of perspectives:

(1) Joel R. Reidenberg, Chair and Professor of Law and Founding Academic Director of the Center on Law and Information Policy at Fordham University School of Law; (2) Mark MacCarthy, Vice President of Public Policy at the Software and Information Industry Association; (3) Joyce Popp, Chief Information Officer at the Idaho State Department of Education; and (4) Thomas Murray, State and District Digital Learning Policy and Advocacy Director at the Alliance for Excellent Education.

Rep. Patrick Meehan, Chairman of the Cybersecurity Subcommittee, opened the hearing by noting that technology is increasingly used in a positive way to enhance student learning both in-and-out of the classroom, which was echoed by Rep. Todd Rokita in his opening remarks. The Subcommittees’ Ranking Members, Reps. Yvette Clark and Dave Loebsack, honed in on privacy concerns. They specifically cited the need to ensure that companies contracted to examine student data for the purpose of improving individual learning are not also scanning the data for improper commercial gain.

Each witness made strong points in their opening testimony.  Joel Reidenberg highlighted many of the themes in his December 2013 study about school contracts with third party service providers, and regulatory gaps in FERPA and COPPA.  Mark MacCarthy provided the industry point of view, by noting that presently there are significant protections in place for student data through existing federal laws, state efforts, and contract protections between schools and vendors.  He explained that although FERPA is an old law, it has been updated a number of times with additional guidance by the Department of Education—which industry members abide by.  Joyce Popp brought a unique and practical perspective to the hearing.  She discussed practices that have been well received and effective in Idaho, such as a state policy demanding that schools document student data collection and provide notice to parents through their websites.  Additionally, Popp emphasized Idaho Senate Bill 1372, ending the practice of allowing public education vendors to use the verbiage “own” as it related to student data.  Finally, Thomas Murray began by explaining that too few students’ graduate high school on time, and argued that this could be combated by enabling teachers to use individual student data to keep more students on track.

During the question-and-answer phase of the hearing, the Chairs and Ranking Members asked a number of questions.  Chairman Meehan was concerned about just how much information is getting into the hands of third parties, and wondered what could be done to ensure this information was not used to make potential hiring decisions about students after graduation.  Ranking Member Clark acknowledged that most vendor companies are probably not doing anything wrong, but broached the difficult topic of how to regulate potential bad actors.  Chairman Rokita returned to Idaho Senate Bill 1372, and the potential of using it as model language.  He also sought more information about using Title II funds to support oversight and enforcement of student privacy rules and regulations within schools.  Ranking Member Loebsack focused his questions on finding a balance between innovation and privacy.  He pressed on the issue that this is not an “either/or,” but rather an “and” game—and that because we must use data to improve education, we must also demand greater accountability from teachers, schools, and third party vendors.  In other words, increased data collection and use requires increased data protection and security.

Representatives Roe and Bonamici also chimed in to the conversation.  Rep. Roe noted that data mining takes place everywhere, citing his own supermarket saver card as an example. Rep. Bonamici responded by saying that even though data is collected everywhere today, the education space presents special consideration. Student data collection should be treated differently because it is not always clear that collection is occurring, and the content of the information is highly sensitive and about minors.

Additionally, Members sought to resolve differences in testimony given by Joel Reidenberg and Mark MacCarthy.  While MacCarthy stated that no new federal legislation is necessary because plenty of penalties already exist, Reidenbergnoted that protections under FERPA are limited. He pointed to the fact that the law’s penalties have never been used against a single school. On the issue of contracts, both witnesses seemed to agree that many school vendor contracts do not expressly prohibit third party commercial use or sharing, but both also agreed that there is no evidence that vendors are actually using student information inappropriately.

In closing remarks, some believed that the fact that people clearly disagree about what present law covers is evidence that Congress has a place to review the state of student privacy regulation to determine what, if anything, needs to be done.  Thomas Murray got the final word—where he reminded everyone of the enormous benefits already emerging from education tech, and pled that whatever the next step is that it should not stifle innovation.