STUDENT DATA AT RISK: A MULTI-TIERED APPROACH FOR MASSACHUSETTS TO MITIGATE PRIVACY RISKS WHILE UTILIZING INNOVATIVE EDUCATION TECHNOLOGY IN SCHOOLS.

AuthorFitzpatrick, Kaleigh C.
  1. INTRODUCTION

    Today, educators in Massachusetts, as well as across the country, have unprecedented access to innovative educational tools and technologies that enhance classroom teaching and learning. For instance, an elementary school teacher can discover, at no cost, an educational application ("app") based in the cloud (1) that could aid classroom instruction. (2) Aiming to assist students, the teacher quickly signs up for the app, sets up an account for each student, and incorporates the app within classroom instruction. (3) Although technological advances have enabled this seamless integration of education technology ("EdTech") into the classroom, the task of navigating the associated legal issues and tackling the privacy questions regarding students' data has proved to be a greater challenge. (4) Those issues are complex, and the questions remain largely unanswered. (5) By implementing the use of EdTech in classrooms, teachers and administrators are giving third-parties broad access to a range of information about students that is stored within the program, such as students' names, history of web activities, and responses to class assignments maintained in the app. (6)

    Technological advances, which are driving reform within our classrooms nationwide, are expected to swell the amount of student data collected in the coming years. (7) In 2013, the pre-kindergarten through high school EdTech industry sales generated approximately $7.9 billion. (8) In today's data-driven society, every test score and every interaction with an online learning tool is now recorded. (9) The level of detail recorded in this data is alarming and can include a student's every diminutive interaction with an EdTech program. (10) Furthermore, these online tools can store and record students' feelings, amiability, and level of interest in the task, which can be analyzed and catalogued within complex data systems. (11) Thus, it is evident that student records now include infinitely more data points than historically collected by schools. (12) According to experts, however, when schools "'record and analyze students' every move and recorded thought, they chill expression and speech, stifling innovation and creativity." (13)

    Legal concerns continue to mount as school districts struggle to quell the increasing pressure to implement available educational technology in classrooms and school administration. (14) The White House released a report on data and privacy in May 2014 stating that "[s]tudents and their families need robust protection against current and emerging harms, but they also deserve access to the learning advancements enabled by technology which promise to empower all students to reach their full potential." (15) Moreover, the U.S. Department of Education's Privacy Technical Assistance Center acknowledges that the Family Educational Rights and Privacy Act ("FERPA") does not always protect student information that is collected through online educational services. (16) FERPA exists as the primary federal law governing student privacy today. (17) Technological developments in the educational arena have outpaced the protections under FERPA. (18) Therefore, it is time to confront and address the reality that our existing regulatory framework is currently ill-equipped to effectively regulate and protect students in this new age of EdTech. (19) After all, FERPA was enacted when schools stored student records in filing cabinets in the front office. (20)

    Massachusetts is a recognized leader in the country for education; (21) now the intersection of technology and education presents its latest challenge for Massachusetts to maintain its distinguished record of educational excellence. (22) This Note will examine the current landscape surrounding student data privacy and provide recommendations specifically for Massachusetts to better protect students in this unprecedented era of technology. Section II provides a history of how and why cloud technology became so integrated in the school setting, along with an outline of the benefits and risks associated with that technology. In addition, this Section presents the current federal and state regulatory frameworks, specifically including an overview of the existing regulations in Massachusetts. Section III provides information on current developments across the country to strengthen and advance more comprehensive protections for student data with a particular focus on local efforts in Massachusetts. Section IV analyzes these efforts in Massachusetts, as compared to states across the country, within the context of overarching federal changes. Section V provides recommendations for Massachusetts to safeguard student data based on best practices and recent developments.

  2. HISTORY

    1. Recent Changes in Technology and Schools' Use of Data

    According to the U.S. Secretary of Education, Arne Duncan, "[student data] tells us where we are, where we need to go, and who is most at risk." (23) The U.S. Department of Education made it a "top national priority" to utilize student data as a mechanism to aid student performance and advance education. (24) School districts have always relied on student information to effectively manage schools and improve classroom learning; however, over the past few years, the development of new technologies now allows schools to more effectively pursue these goals. (25)

    The student data landscape has recently shifted in three major ways: (1) private companies now often manage student data storage for schools in the cloud; (2) education technology has rapidly infiltrated classroom teaching and learning; and (3) a national movement to collect, store, and process student data has emerged. (26) Overall, there has been a rapid expansion of cloud technology not only in our daily lives, but also in elementary and secondary schools across the country. (27) In recent years, schools have incorporated the use of cloud storage in its practices to store and interpret student data. (28) Before such technologies became available, K-12 public school districts in the United States would maintain their student and other data on hard drives managed internally by their own Information Technology departments. (29) Today, schools primarily utilize third-party cloud service providers, like Google Drive, that manage student data in the cloud and outside the physical bounds of the school. (30) As a result of these technological advances and subsequent shift in education practices, existing federal and state regulatory schemes have proven to be inadequate to protect students. (31) Under current laws, schools are unable to effectively protect student data from unintended third-party misuse when data is stored in the cloud by these outside companies. (32) In the last decade, the education sector launched its national initiative to harvest the information reaped from big data called the Statewide Longitudinal Data Systems. (33) For the first time, "states and schools are capable of centralizing, organizing, searching, and analyzing the information of millions of students, in ways that corporations have been doing for decades." (34) Many for-profit companies, such as Google, have joined this educational data push by providing software to gather and process student information. (35) This kind of vast amount of data, typically referred to as big data, can be analyzed to generate models capable of predicting further information about an individual or group based on data collected. (36) Today's classrooms are also increasingly employing data-driven EdTech to enhance teaching and learning. (37)

    Cloud service providers offer data storage and management at lower costs, with greater flexibility, and the capacity to process, store, and analyze data for schools. (38) In the education context, "cloud-based platforms" come with many associated benefits. (39) For school administration, these tools are easy to use, can be accessed remotely at any time, and require limited staff maintenance. (40) For students, these tools provide an "individualized learning" experience while also preparing them specifically for standardized testing. (41) For teachers, these tools provide online forums through which teachers can share lesson plans. (42) The data collected through these tools on each student also provides teachers with in-depth information that assists in customizing individual learning plans with the hope of improved outcomes. (43) The social media component of these tools allows students to collaborate with peers in their own school or across many schools. (44) Schools' use of these online tools is quickly becoming the norm. (45) While these tools bring tremendous advantages, there are also serious attendant concerns that are often undetectable as student information is silently collected and misused. (46)

    In 2005, in response to the No Child Left Behind mandate, (47) the Data Quality Campaign began developing a Statewide Longitudinal Data System intended for implementation in all 50 states. (48) If a state implemented the Statewide Longitudinal Data System, it would receive a federal grant to support its efforts. (50) Then in 2009, the U.S. Department of Education declared that every state seeking federal funding under the Race to the Top (51) program must implement the Statewide Longitudinal Data System in order to receive that funding. (52) The Statewide Longitudinal Data System was created based on three main beliefs:

    (1) access to this data gives teachers the information they need to tailor instruction to help each student improve; (2) administrators can access the resources and information they need to effectively and efficiently manage; and (3) policymakers can rely on this data to evaluate which policy initiatives show the best evidence of increasing student achievement. (53) B. Regulatory Framework for Student Data

    There are three federal statutes aimed at protecting this nation's youth...

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