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Student Privacy Rights: In and Out of the Classroom
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Student Privacy Rights: In and Out of the Classroom


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Student Privacy Rights: In and Out of the Classroom

Student Privacy Rights: In and Out of the Classroom

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  • 2. Disclaimer Lawyers
  • 3. “Students don't shed their constitutional rights at the school house gates."
  • 4. Central Legal Question We Will Explore: ! How do schools balance students’ constitutional rights with schools’ needs to maintain order and a positive educational environment? ! !
  • 5. This talk is not about some abstract case studies. This talk is about you.
  • 6. What We Will Discuss: ! Student Privacy Rights on Campus ! Students’ Use of Social Networks ! Student Records and Privacy ! School Use of Third Party Online Vendors ! Tracking Students ! Public Relations & Privacy Issues ! !
  • 7. uncharted legal territory Everyday Scenarios with the Internet & Technology
  • 8. Scenario #1: Asking a student for their social network login credentials.
  • 9. Not suggested! ! Not only is the case law all over the place, various states are debating legislative proposals to address this issue. ! Additionally, the Terms of Service of sites like Facebook expressly prohibit this activity.
  • 10. Scenario #2: Using private sector tracking software to monitor students.
  • 11. Ask yourself the questions: ! Why and How are you using these monitoring tools?
  • 12. DOE & SIIA Issued Guidance ! 1) Legal Awareness: Be aware of the relevant state and federal laws ! 2) Inventory of Services: Identify all the educational services being used to assess the range of student information being shared ! 3) Approval Policies: Important that staff do not bypass internal controls when deciding to use free online services, and those should go through the same approval process as paid services ! 4) Insert Contract Provisions: Detail policies for data use, retention, and destruction ! 5) Transparency: Let students and parents know what is going on
  • 13. Scenario #3: Using RFID - Radio Frequency Identification Technology
  • 14. Not suggested! ! Tracking students in this manner can be costly, hard to manage and intrusive. ! It can also be a public relations nightmare.
  • 15. Scenario #4: Accessing Photos or Information from a Device Such as a Cell or Smartphone.
  • 16. Seminal Case on Student Privacy: ! New Jersey v. TLO
  • 17. Recent Cases: ! G.C. v. Owensboro Public Schools (2013) ! N.N. v. Tunkhannock Area School Dist. (2011) ! Mendoza v. Klein Ind. Sch. Dist. (2011) ! ! ! ! ! ! !
  • 18. Scenario #5: Using Webcams or Other Means to Take Photos of Students, Especially if the Device Goes Off-Campus.
  • 19. Relevant Case: ! Robbins ex. rel Robbins v. Lower Merion School District (2010) ! ! ! ! ! ! !
  • 20. ! “LMSD is enjoined from accessing or reviewing any student-created files contained on student laptops (including but not limited to documents, e-mails, instant messaging records, photographs, Internet usage logs, and Web browsing histories) for any reason except as permitted by the policies and regulations contemplated by paragraph 7 of this Order or otherwise pursuant to a signed consent form that clearly and conspicuously sets forth the ability of LMSD to access or review such files.” ! ! ! !
  • 21. Scenario #6: Circumventing FERPA.
  • 22. Example: ! FERPA changes that allow for sharing students' personal information with other state officials and private entities for a broad spectrum of activities without the consent of parents. ! May just be the beginning of these types of proposals.
  • 23. Scenario #7: Parent Dissemination of User Generated Content.
  • 24. Social Media Amplifies Broadcast Potential ! Policies should be in place for parents taking photos with smartphones and sharing on social networks. ! Consider the implication for children in situations where parents may have protective or other restraining orders.
  • 25. Parent & Staff Education ! You may think it’s common sense, but write it down and share it with parents and staff members.
  • 26. The Fourth Amendment When Does It Apply
  • 27. Distinguishing Fourth Amendment from privacy in the civil sense.
  • 28. The Fourth Amendment could apply when you are searching private accounts.
  • 29. The First Amendment When Does It Apply
  • 30. Tinker v. Des Moines
  • 31. Long-held precedent, since 1969, that students have wide latitude to criticize to school officials and policies.
  • 32. kidz online. yes, different rules apply.
  • 33. Personally Identifiable Information (PII)
  • 34. “Personally identifiable information” is information that identifies a particular person. “Pii” includes: ! • Full name; • National identification number; • IP address; • Vehicle registration plate number; • Driver’s license number; • Face; • Fingerprints; • Handwriting; • Credit card numbers; • Digital identity; • Date of birth; • Birthplace; and • Genetic information.
  • 35. Children’s Online Privacy Protection Act ! Requires websites to get parental consent before collecting or sharing info for children under 13. ! Enforced by the Federal Trade Commission. ! Applies to commercial websites and other online services. ! ! !
  • 36. COPPA Checklist ! 1) Know what qualifies as personal information under the statute. ! 2) Implement a standardized district-wide process for reviewing an online or education technology service provider’s practices for information collection, use and disclosure to ensure they are COPPA compliant. ! 3) Know where students are accessing information. ! 4) Make sure the sites students visit have prominently displayed, clearly stated privacy policies that meet COPPA’s requirements. ! 5) Provide parents with a notice of the websites and online services whose collection the school has consented to on their behalf. ! !
  • 37. COPPA Checklist ! 6) Inform parents of the procedure for opting out of sharing their child’s personal information. ! 7) Know when schools can or cannot consent on behalf of the parents. ! 8) Ensure the method used to obtain verifiable parental consent is FTC approved, or you can apply to the FTC for pre-approval of a new consent mechanism. ! 9) Implement yearly trainings for school administration and faculty covering the school or district’s COPPA responsibilities and compliance practices. ! 10) Educate students about online safety and privacy issues. !
  • 38. Avoiding the “Oh, crap.” General Privacy Tips
  • 39. California ! Privacy Policy Required ! It’s just good sense for schools too. !
  • 40. Social Media Privacy Act ! Enacted to protect students at universities and employees from the demand of usernames and passwords. ! On the horizon - may be amendments to apply to K-12 schools (exemptions for instances involving bullying investigations)
  • 41. Protecting Student Records ! Over 8 million student privacy records have been lost from nearly 600 security breaches since 2005.
  • 42. We just scratched the surface.
  • 43. ?
  • 44. Lawyers Gagnier Margossian @gamallp