The Department of Education recently ramped up the pressure on school districts, schools, and higher education institutions to reform their procedures for student data outsourcing, releasing a fourteen-page guidance document on 25 February that reinforces the obligation to comply with privacy laws when using a service provider to host or process student data. By issuing the guidance, the department has put entities covered by student privacy laws on notice of its expectations regarding their responsibilities when entering into these arrangements. Service providers who store and process student data on behalf of school districts and schools should therefore carefully consider the guidance and how it may affect the market for their services and the contractual demands from their education customers.
The guidance is the latest in a series of events that has shone a spotlight on educational use of data processing vendors. Back in October, a Colorado superintendent made the New York Times when she faced stiff opposition from parents and school board members to the district’s retention of an online records management vendor that would have resulted in a shift of student records to the vendor’s servers. The next month, after the election of a new school board opposed to the use of the vendor, the superintendent announced her retirement — and on the same night, the board voted to scrap the long-debated vendor relationship.
A few weeks after the Times article, Sen. Ed Markey (D-Mass.) sent a letter to the department requesting information about how student privacy laws, including the Family Educational Rights and Privacy Act (FERPA), permit “schools to share student data, without notifying parents, with companies to which they have outsourced core functions like scheduling or data management.” On 13 January, the department responded, clarifying that it does not permit school districts or schools to indiscriminately disclose data to third parties and provides parents and students with important rights when data are held by a vendor.
And in December, the Fordham Center on Law and Information Policy released a report titled “Privacy and Cloud Computing in Public Schools.” The report found that even though 95% of public school districts rely on online service providers for data processing, those districts frequently surrender control of student information, with fewer than 25% of the agreements specifying the purposes for which the vendor could use the student information and fewer than 7% restricting the sale or marketing of student information. The report concluded that school districts are not dedicating sufficient resources to comply with their privacy obligations with respect to the student data they disclose to third parties, particularly when contracting.
Given this recent scrutiny, service providers, school districts, and schools should consider how the department’s guidance, which we summarize in this client alert, may influence those entities’ procurement and contracting policies moving forward.
When must schools comply with FERPA when students are online?
FERPA protects against unauthorized disclosure of personally identifiable information (PII) from students’ education records. With several exceptions, a school may not disclose PII to a third-party provider unless the school has first obtained written permission from parents or eligible students to do so.
The guidance advises that schools and school districts must evaluate the use of online educational services “on a case-by-case basis” to determine whether FERPA-protected information is being used and whether an exception to the consent-to-disclose requirement applies. For example, an online system that requires students’ names and contact information to be provided from education records in order for students and parents to log in and access course material would implicate FERPA. In addition, information about student use of online services that is stripped of student identifiers — such as how long a student took to perform an online task, the date and time the student completed an activity, how many attempts the student made, and how long the student’s mouse hovered over an item — is not protected under FERPA and can be used by a vendor unless the agreement with the school or school district forbids such use.
Notwithstanding the general rule, the FERPA “school official” exception permits under certain circumstances the disclosure of PII to third-party providers without first obtaining written permission. To qualify, the provider must, among other things, (1) perform an institutional service or function for which the school or school district would otherwise use its own employees, (2) be under the “direct control” of the school or district with regard to the use and maintenance of education records, and (3) use education records only for authorized purposes and not re-disclose PII from education records to other parties without authorization.
Practically, to qualify for the exception, the guidance states that a school or school district should enter into a contract that restricts the vendor from using student PII for unauthorized purposes and provides the ability to direct the vendor to use, transfer, or delete student records only at the instruction of the school or school district. The guidance notes that where online educational services require a school or school district to consent to an online Terms of Service as a condition of using the service, if the Terms do not comply with FERPA or enable the school district or school to make use of the school official exception, it may violate FERPA to disclose education records to those services.
The guidance also reminds school districts and schools that whenever a third-party provider maintains a student’s education records, parents and eligible students must be provided access to those records. As a result, any agreement with a provider should allow for such access within a reasonable period of time, but not more than 45 days after receiving a request.
How can providers use student information they collect and receive?
If a school has shared PII with a provider under the “school official” exception, the service provider must use the PII only for the purposes for which it was disclosed. For example, the provider may not (1) use the information to market new products or services, (2) use the information to target students with directed advertisements, or (3) sell the information to a third party. However, if student information has been properly de-identified, or if information has been shared under the FERPA “directory information” exception, which permits disclosure of information that would not generally be considered harmful (e.g., student name and address), such information is not protected by FERPA and is not subject to limitations on use or redisclosure.
On top of FERPA, the Protection of Pupil Rights Amendment (PPRA) requires school districts and schools, with certain exceptions, to notify parents if students are scheduled to participate in activities that involve the collection, disclosure, or use of student PII for marketing purposes, and gives parents the opportunity to opt out of such activities. To the extent that an online education service plans to make use of student PII for marketing purposes, it should work with its customers to provide the required notice and effectuate the parental opt-out.
Privacy best practices
In the guidance, the Department of Education recommends certain best practices that school districts and schools should consider adopting when contracting with online service providers in order to meet their privacy obligations. While not mandatory, the adoption of these best practices can serve as evidence that a school district or school is taking reasonable steps to comply with its FERPA and PPRA obligations in the event of a Department of Education investigation. Therefore, it is advisable for service providers to take note of these best practices, and where possible to facilitate the ability of school districts, schools, and service providers to comply with them.
- Establish policies and procedures to evaluate and approve vendors prior to implementation. The department recommends that school districts and schools should make clear to teachers and administrators how use of services may be approved and who has the power to approve their use. In particular, schools and school districts should remind teachers and administrators that clicking to accept a Terms of Service serves to enter into a contractual relationship, and such Terms of Service must comply with the institution’s or district’s FERPA and PPRA obligations. The department also recommends that established approval procedures be followed when deciding to use free online educational services, including the review of the service’s Terms of Service, to ensure that they do not present a risk to privacy or security of students’ data or to the school’s IT systems.
- Use a written contract or legal agreement, when possible, to maintain required “direct control” over the use and maintenance of student data. The department recommends that agreements with service providers include provisions that (1) address data ownership, responsibilities in the event of a data breach, and minimum security controls; (2) specify the information the provider will collect; (3) define the specific purposes for which the provider may use student information and bind the provider to only those approved uses; (4) specify whether the school, parents, and eligible students will be permitted to access the data and explain the process for obtaining access; (5) establish procedures for modifying and terminating the agreement, and specify how student information will be disposed of upon termination; and (6) clarify the parties’ responsibilities to indemnify one another and what the provider must do to remedy a violation of applicable state and federal laws, including FERPA and PPRA, or to compensate the school for such a violation.
- Employ extra caution when using “click-wrap” consumer applications that do not allow users to negotiate agreements before using the application. The department recommends that school districts and schools review an online service’s Terms of Service at the time of sign-up and regularly thereafter to determine if any provisions have changed. They should also save a copy of the Terms of Service to which they agree and limit teachers’ ability to accept Terms of Service without going through appropriate approval channels.
- Be transparent with parents and students about how the school collects, shares, protects, and uses student data. School districts and schools must provide parents and eligible students with specific notices under FERPA and PPRA, but the department also recommends that schools and school districts develop a plan that addresses student privacy and information security issues in order to alleviate confusion about how data will be shared and how data will be used.
- Consider on a case-by-case basis whether obtaining parent consent may be appropriate. The department recommends this as a best practice even when FERPA does not require consent.
While FERPA and PPRA do not apply directly to service providers of covered educational institutions, for a number of reasons service providers are strongly encouraged to consider how to facilitate their education customers’ compliance with the laws.
First, the Department of Education has the authority to suspend the ability of covered institutions to do business with a service provider where the department finds that the service provider improperly redisclosed education records or otherwise acted inconsistent with FERPA obligations.
Second, service providers may be able to gain a competitive advantage by taking the initiative to incorporate these requirements and best practices into existing contract templates for educational institutions. While doing so would take time up front to implement, it could differentiate a service provider from others who would need to modify their contracts to conform to the guidance or who are unfamiliar with the data privacy and security obligations of educational institutions.
Finally, from a non-legal perspective online service providers to educational institutions should consider the reputational aspects of student data privacy and security issues. Even though the direct FERPA and PPRA obligations are on the institutions, service providers like the one to the Colorado school district have lost out on large contracts due to concerns about their data practices, even if such concerns were unfounded. Therefore, service providers that address privacy and security considerations in their existing contract templates, internal policies and programs, and marketing are more likely to be able to position themselves as responsible partners and providers to educational institutions.