The one group missing in the conversation about student privacy rights is the very group the proposed laws are designed to protect. If you read the Family Educational Rights and Privacy Act of 1974 (FERPA) or the proposed bills, including the Student Digital Privacy and Parental Rights Act of 2015, proposed by Representatives Luke Messer (R-IN) and Jared Polis (D-CO), they are all about parental rights, but they only empower students once they turn 18.
I was pleased to see Danah Boyd weigh in (all links below) on this subject, which I've been speaking about for several months but hadn't yet gotten around to writing about.
Student intellectual property rights.
As I said at a recent White House meeting with staff from the Office of Science and Technology Policy and at a recent Berkman Center student privacy event, we need to craft legislation that also protects students' rights to their own data. That not only means that students should have the right to protect their privacy but also the right to retain their data and intellectual property to use as they wish at any time in their lives.
Most of the existing and proposed legislation gives parents the right to control student data until the student turns 18 and that control could include the ability to order the deletion of that material. But what if the student doesn't want it deleted? Consider the rights of an LGBT student who writes a school essay on sexual orientation. Could that student's parent order it be deleted from school servers or the servers of companies contracted by the school? What about a student who is exploring political or religious issues that may disagree with their parents' views? Does that student have any rights?
Does student privacy extend to their parents?
And what about a student's right to privacy. In most states (and with a few exceptions) what a minor says to a doctor is confidential -- even to their parents. But aren't there circumstances when that ought to apply to what is said to a teacher? Maybe that LGBT student doesn't want his or her parents to see what they've written on a school paper. What about a student who writes about abuse by their own parent? Must that parent have the right to see that essay?
I'm not suggesting that parents not have rights. I think they should have the right to look at their students' records but I think that students -- even before they turn 18 -- should have at least as many rights as parents. It's about time we start to respect privacy, free speech rights and intellectual property rights of children.
Boyd points out some other important considerations including the rights of economically disadvantaged children "who are already under constant surveillance." And she is correct that, most of the issues addressed in proposed legislation "are shaped by the fears of privileged parents." While it's great to protect students from marketers, those who might want to seduce them into debt and those who might want to harm them in other ways, it's also important to protect children from those in law enforcement, education, government and even the student's family who might seek to violate their privacy. As boyd has pointed out in other writings, for many youth, privacy is not so much a matter of keeping data away from companies and big government, but from parents, educators and law enforcement who have a direct impact over the students' lives and freedoms.
While all of the proposed bills offer some important protections, it's important to extend those protections so that they empower students themselves, including those under 18, and to avoid unintended consequences such as denying students the right to maintain their records, suppressing the use of innovative services or apps, or violating students' intellectual property rights over material they have produced that may be stored on school servers or commercial servers affected by existing or proposed laws.
Lawmakers should also consider protecting the privacy of data on students' own devices. Whether it's a vendor or the school itself, students should know their privacy rights when it comes to the devices they carry. There remains a lot of ambiguity regarding students' fourth amendment rights over warrantless searches of their digital devices.
As we consider regulations to control services not operated directly by schools, it's important to realize that some of the most innovative and useful services have yet to be created and are likely to come from entrepreneurs -- some who will be students themselves. We don't want to regulate so tightly that students and teachers are forbidden to use such services, including commercial services that have great educational value even if they aren't specifically aimed at education.
It's also important to recognize that there is no such thing as privacy without adequate security and that securing school servers is an expensive proposition that Congress should consider funding. Congress should also recognize that neither laws nor technologies can protect privacy and security unless the student, teachers, administrators and parents know how to protect their own data and data under their custody. All stakeholders need education on best-practices for privacy and security including creating and managing unique and secure passwords, knowing what is and isn't appropriate to post or submit and to understand that these laws do not apply to all media, such as social media accounts that students set up on their own, even if they are used at school.
Which Students Get to Have Privacy? (by danah boyd)
A Parents' Guides to Student Data Privacy (ConnectSafely, Future of Privacy Forum & National PTA)
Bills and laws