A classroom teacher comes across a promising online educational service or application that she wants to use with her students and comes to you to make sure it’s legally appropriate. The service or app would collect and use student data, maybe even share it. How do you know whether the service or app is privacy-friendly and complies with your responsibilities under federal laws like FERPA? The first key is to review the terms of service (TOS) for the service or app—and to do so before you or that teacher “clicks” to agree to using it with students.
The Department of Education recently issued requirements and best practices focused on protecting student privacy while using online educational services. The requirements and best practices document was followed by model terms of service guidance and a training video with the goal of helping school leaders tackle these very questions. The Department warned that school officials must exercise diligence when reviewing TOS agreements to avoid violating student privacy requirements.
The model TOS guidance is especially useful in that it sets forth 12 privacy-related TOS provisions to which school leaders should pay particular attention. The guidance provides examples of TOS provisions that are best practices and suggest that the provider is taking the right steps toward protecting privacy. The guidance also provides examples of TOS provisions that cannot or should not be included in TOS—in other words, examples of legal mistakes that you might see in a TOS and should avoid. Explanations follow each set of examples to help school leaders understand the privacy concerns at issue.
Examples include provisions relating to the definition of “data,” marketing and advertising, and data mining, among others. Although the Department makes clear that the best practice is always to consult legal counsel to review TOS and other materials governing a relationship between a school district and an online educational service or app provider, the guidance and other materials are essential reading for school leaders who are called upon to review TOS or other requests related to such providers.