Academic journal article The Journal of High Technology Law

Student Data at Risk: A Multi-Tiered Approach for Massachusetts to Mitigate Privacy Risks While Utilizing Innovative Education Technology in Schools

Academic journal article The Journal of High Technology Law

Student Data at Risk: A Multi-Tiered Approach for Massachusetts to Mitigate Privacy Risks While Utilizing Innovative Education Technology in Schools

Article excerpt

I. 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. …

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