Big Data Can Mean Big Dilemmas for Student Privacy
The Department of Education amended federal student privacy laws to loosen restrictions on sharing the information, but that doesn’t mean it’s always easy for journalists to get access.
Earlier this month at the SXSWedu conference in Austin, EWA explored the current rules on data privacy—Too lax? Too tight? — and looked at how districts have interpreted them. We also discussed ways in which enterprising education reporters have gotten volumes of student data and some of the eye-opening stories they have produced. Joining us were: Khaliah Barnes, administrative counsel of the Electronic Privacy Information Center (EPIC); Frank LoMonte, executive director of the Student Press Law Center; and Alexander Richards, data reporter for the Chicago Tribune.
Moderator Stephanie Simon of Politico began the conversation with an overview of the federal Family Educational Rights and Privacy Act (FERPA) of 1974. As Simon pointed out, its original intent was to ensure parents could access their children’s school records. But over the ensuing decades, the federal law has become a crazy quilt of addendums, exceptions and misapplications.
As a measure of that confusion, Simon pointed to the U.S. Department of Education’s own guidance on FERPA when it comes to whether student data[E1] is public. The “official” answer: It depends.
“You would think after 40 years there would be a pretty good understanding of what you can and can’t do with the data,” Simon said. “That (understanding) isn’t there at all.”
She referenced several recent high-profile examples of protected data going public that have privacy advocates particularly concerned. For example, a school district vendor posted online the names, dates of birth, and attendance records of thousands of students. And parents in particular fear there’s a risk even if data are never mistakenly made public: Vendors could be able to access information and build individual student profiles that will later be used for marketing purposes and commercial gain.
At the same time, student data has been a critical plank in some first-rate reporting projects in recent years, including a Chicago Tribune investigation into the city’s high rate of school absenteeism. Access to public records is one way the media holds the education establishment accountable.
The challenge, Simon said, “is you don’t want to make the rules so loose that you let students be harmed but at the same time if you make it so restrictive you end up limiting legit journalistic uses.”
While recognizing the inherent value of “transparency and oversight” of government, those benefits “cannot come at the cost of student privacy,” said Barnes of EPIC, which advocates to raise public awareness of constitutional rights to privacy.
It’s not enough for data collectors – including school districts — to offer assurances that they won’t use personal information inappropriately or that they have only the best of intentions, Barnes said.
“How many of you allow companies to come to you and say ‘Hey, give me all of your sensitive information. Don’t worry: It’s for your own good. Is there anyone in here that would do that? That’s what our students are facing today. A lot of their information is being disclosed with out their knowledge, consent or sufficient privacy protections.”
There’s too much confusion of what is and isn’t protected by federal privacy laws, Barnes said.
“A lot of the problems are not with FERPA per se but with application of FERPA,” Barnes told the SXSWedu audience.
Indeed, FERPA has become a catchall net that’s routinely thrown over any and every kind of data, said Frank LoMonte, executive director of the Student Press Law Center, which routinely fields requests for help from college journalists who have been denied reasonable access to public records.
“A ham sandwich could qualify as a FERPA record right now,” said LoMonte, in the sound bite that might well have been the most retweeted of the entire session.
Every state has a public records policy “under which there is a strong presumption that information held by a public agency is accessible unless there’s an override,” LoMonte said. But it’s commonplace today for public agencies, often reacting out of fear of releasing information that was supposed to be protected, to refuse access to even the most obviously open records, LoMonte said.
Alex Richards, a member of the Chicago Tribune reporting team that looked at absenteeism in the city’s schools, said it took months of wrangling between the legal teams the newspaper and the Chicago Public Schools for him to get access to the attendance records. While the data didn’t identify individual students, it provided an essential framework for discussing the size and scope of the districtwide crisis, and showed how disproportionate the rate of absenteeism was for African-American students compared with their white classmates, Richards said.
The other reporters on the team spent a significant amount of time connecting with actual educators, students and parents at the school level and building on existing relationships, Richards said. Their personal experiences were essential for helping readers understand why the data matters.
Richards’ point is a good one: Data on its own isn’t of much use when it comes to accountability. And it’s often the media the public must rely on to provide that essential context.
For more from the SXSWedu session, check out our Storify of some of the best tweets from attendees. I’ll also be updating this post with an audio podcast as soon as it’s available.