Privacy Bills Block Personalization, Seek Private Benefit

15 Mar 2014

Dozens of seemingly well-intentioned student privacy bills have been dropped on state houses recently — not exactly a coincidence. Those interested in maintaining a centralized approach to data management — and software sales — have suddenly caught the privacy religion. But there’s lots of trouble with this old dogma.
The U.S. Department of Education’s Privacy Technical Assistance Center (PTAC) has gotten into the act releasing guidance on the subject — and it mirrors the big corporate approach of centralized approval. Their guidance was appropriate for 2009 but it’s outdated in 2014. Perhaps they don’t realize how significantly things have changed in the last five years when most teachers, parents, and students have begun using free and open online resources.
The first problem with these bills is that they could prevent personalized learning — the most important development in the history of education. They could eliminate the ability to create and transfer portable student records. They could even limit a parent’s right to share student information with a tutor or after school program.
The second issue is the preoccupation with advertising — a red herring from 25 years ago. There are no EdTech business models built on advertising. Stick to the consumer space, these are bills proposed to solve a problem that doesn’t exist.
Third, these bills are anti-teacher. They dramatically limit teacher voice and block innovation. By requiring districts to approve everything teachers use, they undermine teacher professionalism and reinforce the Big Brother enterprise view of the world. These bills would require teacher entrepreneurs building new solutions to spend half of their budget on the old dysfunctional district sales cycle.
Bad idea but not policy. 
It’s important for districts to remember that the guidance issued by the Department is a suggestion, it’s not a requirement to create a new centralized approval process.
The guidance is a good reminder for everyone involved in education to take the issue of privacy seriously.  As formal education incorporates the awesome potential for personalized learning, the key is for policy makers to embrace innovation and privacy.
Much of this brouhaha is part of the bigger fight between entrenched enterprise software vendors and innovative education companies using Internet-focused forms of distribution.  While the big enterprise guys beg to differ, Internet terms of service (sometimes called “clickwrap agreements”) are as legally binding as written agreements–the validity of internet contracts is well established.  What’s important is what is in the contract, it’s not whether the agreement is given to the customer over the Internet or by a traditional salesperson, and the sooner everyone can focus on that, the more we can protect student privacy.
Privacy concerns are covered by FERPA and by Federal Trade Commission laws especially given recent changes giving parents better mobile app privacy. Any gaps should be fixed here rather than a crazy patchwork of 50 different state privacy laws.
Teachers should be allowed to continue to find and use the best resources available (and they’re getting better every week!).  They should read associated clickwrap agreements. Vendors, for their part, should make agreements readable and transparent, and their agreements should clearly state how they are using student data. Lighthouse companies connect to parental permissions at the school level for use agreements that are more muscular than clickwrap.
Before their privacy roadshow, the Department should rethink its outdated guidance. And those interested in perpetuating the old centralized model of education should focus their efforts more on helping kids learn than on maintaining their control over how educational tools are distributed.

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