Updating FERPA, after all it’s only 40 years old

This week Congress talked about improving legislation to protect student privacy. The Subcommittee on Early Childhood, Elementary and Secondary Education conducted a hearing to discuss updating FERPA and it is important that student privacy is being discussed in Congress to raise awareness of this issue.

FERPA was enacted in 1974 and what this session made clear is that the 40 year old law can’t keep up with the rapidly developing education technology industry. So yes, FERPA needs a facelift. The discussion is moving beyond attempts to prevent the collection of data to become a dialogue involving students, parents, educators and industry leaders. Now, I am not saying it’s all good and we have nothing to worry about but I am encouraged when listening to testimony acknowledging the challenges ahead and the desire to present Congress with facts and information that will help them make informed decisions. More importantly, I feel Congress asked some of the right questions – what is the role of third party vendors, what data should we collect, what does it mean to have an SLDS and how long should we retain the data? The underlying problem is how to support and improve FERPA without shutting the system down. The hearing was not about overreach. It was about finding a balanced approach to updating a law to protect student information.

I found particularly interesting Joel Reidenberg’s proposition of data minimization: how much data should we really collect and do we need to collect every detail of a child’s educational journey? We ought to critically examine what data is required to improve education and serve each learner’s particular needs. And it’s complicated. As Shannon Siever pointed out – do we need to do a biometric scan on a student in order to deliver school lunch? No. But biometric data can provide valuable insights and benefits for a student undergoing speech therapy. So what do we limit?

Another important point discussed was that of data ownership. We need to define this concept because what data ownership means for industry is not the same as what data ownership means for students. Does one recognize students own their data while still acknowledging that third parties can use that information?

Though much was discussed during this hearing, much has yet to be discussed. If we overhaul FERPA, we must be mindful that we are not limiting our ability to study why some students are being left behind. That we adopt a comprehensive approach to the collection of information but that we protect the information of students with learning disabilities, for example.

This Committee will be well served if it considers parents as partners and not bystanders. Consider who generates the data (students), who holds the data (schools) and how the data is being used (third party vendors) in schools. Strike a balance of personalized learning and safeguarding data.

I urge Congress to be careful when considering changes in FERPA and to think seriously how these changes will impact the ability of schools to use technology to better educate students. In an effort to limit data usage we may limit how we can help students learn.

Without modernizing FERPA innovation will stall. If parents do not feel that we have a law on our side, there will be a constant tension between schools, students and service providers. FERPA needs to be updated to fit what happens in schools and technology today to build trust between all the stakeholders, foster cooperation and provide privacy protection. And don’t forget our students need to have a voice in the process – what do they expect an updated FERPA will deliver to them?

If you missed the hearing, here is the archived webcast – Congressional Hearing


A Privacy Dilemma


What do you do when you are faced with a privacy dilemma? This week, one of my children brought home a consent form; and it wasn’t for a field trip. It was a consent form to allow pictures to be used on a website used by many to raise funds for school projects. So I am faced with a privacy ethical dilemma. Do I protect my child’s privacy by not allowing pictures of her to be used as the letter states “on our website and may allow our donors to display all photographs on their websites and social media channels and to otherwise use the photographs for publicity and promotional purposes” or do I allow her picture to be used because her teacher is raising funds to be able to afford projects that shall further her education?

So here I am sitting with this letter trying to make the right decision. But is there a right or wrong in this case? You see, it’s difficult because ultimate ethical systems are impracticable. It is nearly impossible to define with absolutes. Ethical systems are workable as sets of principles. So do I give permission for my daughter’s pictures to be used so that her class can get much needed resources sacrificing her privacy in the process?

Our kids care about their privacy. It matters to them. How would they feel if we asked them if we could take their picture and post it for the world to see? I wonder sometimes what it feels like to be a kid these days. Whenever any of us pulls out a camera to document the recitation of a poem or performance of a play and post it on social media, our children’s privacy becomes public. When I was growing up I could see parent faces, now I imagine kids see camera phones…but I digress.

And this is the point when we need to stop thinking about what we want and shift our focus to the children and ask ourselves – what do they want? How do they feel? This picture, this image of my kid, is becoming part of her data trail. A data trail that she is having very little say in its forming. If others can take this picture and use it in other materials it is becoming impossible for my daughter to control her data. Which is why the issue is so complicated. But in controlling the use of her picture we are in a sense limiting the ability for the school to raise funds. And it is a struggle to deal with this tension. Who gets to decide what is right? Am I right or should the school get as many opportunities for funds as they can? Thus the privacy dilemma, in the effort to protect one am I unwillingly affecting others. A photograph is more than just a photograph.

So what do you do? Sign the paper or not?