Schools Do Not Have to Sacrifice Students’ Privacy to Continue Schooling

As government leaders, policymakers, and technology companies continue to navigate the global coronavirus pandemic, CDT is actively monitoring the latest responses and working to ensure they are grounded in civil rights and liberties. Our policy teams aim to help leaders craft solutions that balance the unique needs of the moment, while still respecting and upholding individual human rights. Find more of our work at cdt.org/coronavirus.

Just like many of us are doing in our personal and professional lives right now, schools are turning to technology to confront the disruption caused by COVID-19 and continue to serve students as best they can. Some of these uses seem obvious. For example, there have been a number of stories about using video conferencing and recording services like Zoom to continue to provide instruction while school buildings are closed or students and teachers are quarantined.

However, there are other important services that schools provide beyond instruction that technology can enable during this time: 

• Meal Access: State and school districts are creating websites and mobile apps to enable families to continue to access meals. For example, California updated its CA Meals for Kids in California, and Louisiana created SchoolMealFinder, which other states like Texas, Virginia, and Tennessee have joined.
• Mental Health: Educators, counselors, and mental health professionals are utilizing video conferencing and teletherapy to maintain connections between students and caring adults as well as provide mental health and counseling services. Students in St. Cloud Minnesota will connect with counselors and receive mental health services via virtual check-ins and teletherapy.
• Instructional Content: School districts are partnering with public television networks to provide new or more educational content (Los Angeles Unified School District partnered with its local PBS station to provide at-home learning, for example).

At the same time, the increasing reliance on technology is bringing new light to equity issues that have existed long before the pandemic. Whether students have school-issued or personal devices varies greatly as does their access to the internet. Moreover, even with technology, students with disabilities may not be appropriately served as content and services provided electronically are not always accessible to all students (e.g. not enabling voice-to-text for a student who is deaf). English Learners may also be unable to receive content in their native language or the tailored support that they would by an educator in person.

In addition to equity concerns, the rapidly growing role of technology in schools and the understandable urgency with which schools are moving has the potential to exacerbate privacy issues. In fact, school districts may unintentionally violate federal and state laws if they do not heed existing requirements and standards around privacy when engaging new or expanding the role of existing vendors.

State education agencies and school districts are moving with understandable urgency, but it does not absolve them of their legal responsibilities. Although school districts are still formulating their distance learning plans, they should:

• Treat streaming and recorded videos that have any student interaction as personally identifiable information and thus subject to federal and state laws;
• Continue to monitor vendors that provide tech services to ensure they also adhere to their obligations to protect student data as required by the Family Educational Right and Privacy Act FERPA) and state laws;
• Enforce existing state and federal privacy requirements when using new technology, even if it is offered for free, and avoid identifying specific students’ COVID-19 testing status and results; 
• Plan for what to do with new data sets after school buildings are reopened, including possible data deletion. Special attention should be paid to free services that were only engaged during this crisis and might later incur charges.

And the good news is that these are not new issues, so there are existing resources that can help:

• Privacy policies: Common Sense Media has reviewed and evaluated privacy policies .
• Contracts: The Student Data Privacy Consortium works with state and local education agencies to create model contracts.
• Deletion: CDT has issued guidance on best practices around data retention and deletion.
• Working with parents: CDT also released a guide for parents on navigating student privacy issues.
• FERPA and COVID-19: The U.S. Department of Education released guidance on navigating privacy questions related to COVID-19 and FERPA.

This is a rapidly changing environment, so CDT will continue to monitor as schools deploy technology to continue to deliver services and offer support and guidance as needed.