FTC, Department of Education Announce Workshop to Explore Privacy Issues Related to Education Technology
Because the disclosure of private information that should be protected is irrevocable--a "bell that cannot be unrung"--agencies should proceed with the utmost caution and care when considering actions that have the potential of further endangering student privacy. Students and families can no longer rely on the protections that were intended by the enactment of FERPA: the U.S. Department of Education has never, in the four-decade history of FERPA, withheld federal funding for violations of FERPA; there is no private right of action under FERPA to compensate students for or deter breaches of privacy or denial of access to their own education records; and USED has been actively and successfully litigated the denial of standing to advocates who have endeavored to enforce FERPA protections on behalf of students. Most troubling is that, over the past several years, USED has suspended enforcement of FERPA when violations involve records relating to students which are in electronic form. USED has equivocated on the definition of "education records," which is the core of FERPA, and upon which the protection of "personally identifiable information" depends. USED has given educational institutions free rein to claim, for example, that a record relating to a student in electronic form is not an education record when students and their families seek to exercise their rights under FERPA to review, inspect, correct, and be protected from disclosure of, such record; and then to claim that the same record is an education record when the institution wishes to bar access to the record by the press; and then also to claim that the same record is an education record in order to avoid compliance with HIPAA requirements when the record contains protected health information. No actions should be taken by either FTC or USED that will permit, or can be used as justification to permit, the release of student information or breaches of student privacy while incentives to disclose private information are ever-growing and the nullification of FERPA protections by USED continues.