Response to the Controversy Surrounding the Student Privacy Protection Act

By Karen Effrem & Jane Robbins

The Student Privacy Protection Act, (SPPA) –  S1341, is creating quite a stir. As expected and despite the long list of supporting organizations, the crowd at the Data Quality Campaign which is heavily funded by pro-Common Core groups and anti-privacy corporations that stand to profit from access to our children’s sensitive data, has attacked SPPA and lamented that Sen. Vitter’s “intent is to respond to parents’ concerns” (DQC meant this as a criticism!). In addition, the American Education Research Association, another group that makes its living on our children’s data, is opposed. AERA’s president said in an email, “This legislation, if it were to pass, would have a devastating impact on the quality of education research.”

Unexpectedly, however, a critique has arisen from a well-respected figure on the anti-Common Core side of the spectrum. This critique, though well intended and sincere, is based on a faulty factual and legal analysis. It is unfortunate that this opposition, coming as it does from someone who has done so much to advance the anti-Common Core and pro-privacy movement, may result in division among the parents and other citizens who have now been fighting these battles for years. SPPA is acknowledged by privacy experts to be by far the most protective legislation in existence. It is critical that our movement work with Sen. Vitter to perfect and advance this bill. In the face of the withering onslaught from our opponents, we cannot let a valuable advance be thwarted by friendly fire.

Therefore, after having been closely involved in the discussions that led to the drafting of SPPA, Education Liberty Watch President, Dr. Karen Effrem and American Principles in Action Senior Fellow, Jane Robbins have assembled this respectful disagreement with and response to this critique. (See this link also).

Although the critique mentions numerous concerns to which Effrem and Robbins respond, the major ones revolve around expansion instead of protection of students from psychological profiling and that changing the term “student record” to “student data” will increase instead of decrease access to private data by third parties.  Here is the partial discussion of those two issues as a sample:

Claim:

SPPA will increase psychological screening and profiling: “[Vitter] defines in great detail every aspect of psychological testing, treatment, analysis, and evaluation—the affective domain—that requires permission, and then allows the special education teams to implement the entire affective domain list.” 

Fact:

One of the most exciting parts of SPPA, especially for analysts and activists like Dr. Effrem, who has been fighting mental screening and the over-diagnosis and drugging of children as young as infancy for more than a decade^[1] , is the prohibition on psychological testing and the strengthening of the Protection of Pupil Rights Amendment.  After defining various terms, the bill does not merely require consent for mental screening and assessment or surveying of psychological attitudes with federal funds (a completely inappropriate federal activity), it fully prohibits psychological screening and profiling. The only exception is for special education evaluations, which is already current law. Significantly, the bill extends the prohibition of psychological screening and profiling to assessments, and thus would also ban the more horrific features of the Common Core assessments.

Here is the key language of SPPA:

‘‘(2) IN GENERAL.—Notwithstanding any other provision of law, no funds provided to the Department or Federal funds provided under any applicable program shall be spent to support any survey or academic assessment allowing any of the following types of data collection via assessments or any other means, including digitally^[2](Emphasis added):

This language protects a long list of affectively related surveying and testing parameters,^[3] and is much more protective of students in this area than any other legislation, state or federal, introduced anywhere.

Claim:

By changing terminology from FERPA’s “student record” to SPPA’s ”student data,” “Sen. Vitter carefully crafts his legislation to ignore the national data tracking and trafficking of student education records collected by the National Center of Education Statistics (NCES) and the Institute for Educational Sciences (IES) for which grants were given to each state to develop State Longitudinal Data Systems (SLDS).”

Fact:

Rather than being an underhanded attempt to allow the collection of more data, the intent is to protect more of the myriad types of data outside of “educational records” that is already being collected without parental consent, especially by third-party vendors. A Politico investigation^[4]showed that private corporations have access to up to “ten million” data points on every child and described one company’s efforts:

“Interactive Health Technologies stores multi-year fitness records on students, based on data from heart monitors they wear in P.E., and integrates them with “unlimited data points” from the classroom, including behavioral and nutrition records.”

The term “student record” originated in 1974, when the Family Educational Rights and Privacy Act (FERPA) was first written, and when records were on paper and kept in filing cabinets.  There were no online/digital data gathering, no cloud computing, and no student longitudinal databases.

The idea for the change in terminology came from testimony by Professor Joel Reidenberg, a law professor and privacy expert from Fordham University Law School (to be distinguished from the decidedly pro-Common Core Thomas B. Fordham Institute), who has been one of the few pro-privacy experts to be allowed to testify in Congress, amongst the corporate shills and bureaucrats who want to grab as much student data as possible.  Here is an excerpt from his testimony^[5]:

Update the definition of “Educational Record”

FERPA covers “educational records” in a very narrow sense and contemplated only those records that were originally kept in central administration files such as transcripts. The statute also specifically carves out an exemption for “directory information” including a student’s name, address, date of birth, telephone number, age, sex, and weight.

The 1974 definition and the directory information exclusion no longer make sense in 2015. Much of the data gathered and used in the context of online services will be outside the scope of the existing definition. For example, metadata gathered from a learning app used by a child in school that was then compiled to create a profile of the child for content delivery would not be an “educational record” and would fall outside the bounds of FERPA. Similarly, information developed by a school’s transportation company identifying the street corners where 6^th graders wait to take the school bus would fall outside FERPA and could be disclosed for advertising purposes and even possibly disclosed to non-custodial parents. Likewise, a child’s homework assignment saved or shared with a teacher on a third party service would not be an “educational record” and would not be protected by FERPA.

For meaningful protection of student privacy in this environment, FERPA needs to encompass any information gathered about children for educational and school related uses. This would include profiles, whether or not identified to specific students, if those profiles will have an effect on the child’s education or school related services.

This, and not an ulterior intent to expand data-collection, is the reason for the change in terminology.

One privacy expert (unaffiliated with any of the supportive organizations) said of this legislation, “The Vitter bill is not perfect, but it is the strongest and most authentic educational privacy bill out there. Attacking it the way [this critical analysis] does strikes me as a disservice to our collective effort to restore privacy rights. We can be much more effective in constructively working with Vitter to address any real issues as the bill moves through the process.” We would all do well to heed his advice.