By Kaitlyn Stone

With the increase of technology in the last decade, it is no surprise that the classrooms of yesterday are long gone. Rather than handwriting assignments in cursive, students are being required to type their essays on a computer. Math homework is now completed online, instead of in workbooks. Even the information that is provided to parents has been mostly digitized (which means students can no longer claim to have “lost” their report cards…). But with all of the advancements we have made in technology, many critics and even some educators, argue that the way we protect student privacy has not been able to adapt quite as quickly.

There is no argument that the use of technology in the classroom is not only beneficial, but also important. Parents are able to bridge the gap between home and school life by checking on their child’s grades, whether there have been any behavioral problems, and the balance of the child’s lunch account. Rather than waiting for a letter to be sent home, parents are now able to address these issues immediately and directly. Teachers are able to better track and monitor a student’s academic progress and provide useful resources when a student is struggling. And the students themselves are learning important skills about being productive and efficient in an increasingly technology-driven society. The statistics speak for themselves: 81 percent of teachers believe that the use of tablets enrich classroom learning, and 64 percent of high school seniors said that they think tablets help them study more efficiently.[1]

But the primary concern remains how to protect the personal information of the students when these technologies are implemented. With the sheer amount of information that these technologies require in order to provide the benefits, educators need to be extremely careful in the types of technology that are being used to ensure that they are in compliance with the Family Educational Rights and Privacy Act (FERPA) and other student privacy legislation.

FERPA was first introduced in 1974 with the goal of protecting students’ rights in ensuring the privacy and accuracy of their educational records.[2] FERPA allows students and parents (up until the student turns 18) to request to look at their educational records, request to amend the educational records that are inaccurate, demand that Personally Identifiable Information (PII) be disclosed only with student consent, and bring a complaint against the institution if any of these rights are violated. While the Act has been revised over the years, as the way information is stored and shared has also changed, many believe that these guidelines are not enough to ensure student privacy. Because most student information is now being stored through third-party “Cloud” services, Kathleen Styles, the Chief Privacy Officer for the Department of Education believes that schools need more guidance in how to select third parties that are capable of following FERPA guidelines.[3]

In an attempt to resolve this issue, some states have attempted to pass their own student privacy legislation to supplement the guidance provided by FERPA. In September 2017, the Data Quality Campaign published an “Education Data Legislation Review,” which reported that 26 states passed 53 laws focused on student data during the 2017 legislative session.[4] Of these laws, five bills were passed that focused specifically on governing the behavior of service providers to prevent them from selling student data and using it for targeted advertising.[5] While the response to protecting student data is encouraging, some critics are concerned that the bills may be overly restrictive, or otherwise discourage the use of technology in the classroom. This is illustrated by the fact that only six bills were introduced that would provide educators and parents access to student data. If the concern over student privacy restricts the ability of educators and parents to access and use their students’ data when necessary, then the benefits of using technology will not come to fruition. In the coming years, legislators need to be aware of this tension between privacy protections and the ability for educators to use the data to improve the learning environment for their students.

One approach to dealing with this tension is to better educate teachers and district administrators on how the digital tools they seek to implement work. For example, imagine a math teacher that finds a new gaming app that teaches students multiplication. She wants to have her students download the app on their school-issued iPads and play it for 20 minutes a day to see if it will help improve test scores. What this teacher may not know, is that this free app may be collecting information about her students when they download and use the app, and sell that information in data to other third parties. In order to avoid this problem, and to encourage the use of technology that could have very real benefits for students and test scores, school districts should implement a process by which these new technologies are reviewed and researched. This process would allow well-meaning teachers to ensure that the technologies that they bring into the classroom are not only benefiting their students’ academic abilities, but also ensuring that their private data is being shared only with those who need it.

There is no doubt that technology is here to stay and that it is changing the way that our children are being taught. This technology has the potential to help create better educated, more productive members of our society, and could be the catalyst for even bigger changes in the future. But in order to ensure that this happens, both legislators and educators need to be aware of the tension that exists between student privacy and the use of technology. By implementing legislation and school policies that encourage teachers to make use of new technologies in a way that will protect the personal information of their students, we can help ensure that the future is brighter for everyone.

Student Bio: Kaitlyn is a 3L student at Suffolk University Law School and a Chief Note Editor of the Journal of High Technology Law.

[1] Technology & Computers in Classroom Statistics, Statistic Brain (July 3, 2017), archived at https://perma.cc/2Q2E-LUP3.

[2] FERPA, AACRAO (last visited Nov. 27, 2017), archived at https://perma.cc/UGY8-E486.

[3] Lauren Barack, The Problem with Student Privacy and How to Protect It, School Library Journal (Jan. 17, 2017), archived at https://perma.cc/9A8F-3P72.

[4] Richard W. Walker, DQC: States making Progress on data privacy but need to address educator access, edscoop (Sep. 29, 2017), archived at https://perma.cc/Y6QZ-K963.

[5] Data Quality Campaign, Education Data Legislation Review (Sep. 2017), archived at https://perma.cc/R8HJ-3AAB.

Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.

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