1. Student Privacy in an Ever-Changing Digital World
Scott D. Schafer
University Privacy Officer
March 9, 2017

2. Overview Changing landscape of education technology
Privacy and student data used in online educational services
Best practices for protecting student privacy

3. Goals
Provide faculty, staff and students with cutting-edge learning tools
Protect privacy when using the tools
Strive to accomplish both goals
3 Goals
Equip faculty, staff and students with cutting-edge technologies and solutions
Protect Privacy when using these technologies
Ideal – we accomplish both of these goals at same time

4. Online Educational Services at Penn
How are Online Educational Services Being Used??
Student information systems
Educational applications
Productivity applications
Online Educational Services at Penn
Student Information Systems – Access to records, career services
Educational Applications – facilitate educational discussions or sharing of ideas
Productivity Applications
Fundamental University Services –
Fundamental University services

5. What Are Online Educational Services?
Computer software, apps, or web-based tools
Provided by a third-party to Penn
Accessed via Internet by students, faculty, and/or staff
Used as part of a University activity
NOT online services or
social media used in a personal capacity
They are web-based apps, tools, or platforms
Provided by 3rd party
Accessed by Internet
Part of the educational experience at Penn
NOT – Online services (social media) used in a personal capactiy

6. Challenge of Online Educational Services
3rd Parties perform University functions
New types of data and more of it!
Many online services do not utilize the traditional 2-party written contractual business model
Concerns about monetization of personal information and behavioral marketing
Use data effectively and appropriately but still protect privacy
Challenges –
Third parties are providing these services – less control
They collect or record new types of data – not just data provided, but data on how the services is used, clicks, where they go – who owns that data???
Offer just click-through agreement people just accept – not based on a two-party negotiated contract model - restrictions use of data is not negotiated
Data is truly the New Gold!! - It’s a valuable commodity – and lots of entrepeneurs in the online educational space recognize this.
Want to use it for their own purposes (behavioral marketing, maybe even sell it)
Significant Implications on student privacy – Penn’s obligations to protect student privacy
So they are offering Higher Ed new, innovate services

7. FERPA Family Educational Rights and Privacy Act Federal law that:
Protects the privacy of students’ education records
Provides students the right to inspect their education records
Law protection student privacy is FERPA
Love acronyms –
Protects privacy of student records
Also gives students to inspect their educational records

8. FERPA And Your Role
As members of the Penn Community, we have a responsibility to protect education records in our possession.
Members of Penn community have an obligation to protect student education records in our possession
EVEN if services offered to us are attractive, really convenient, or offered to us for FREE

9. Sharing “Education Records” – Student Consent
General Rule: Education records may not be shared without student written consent -- though important exceptions exist.
General rule under FERPA – Cannot disclose student records WITHOUT PRIOR WRITTEN CONSENT
BUT there are some really important exceptions

10. Sharing “Education Records” – Student Consent
What is an “Education Record”?
Any information or data directly related to a student maintained by Penn
What Is NOT an “Education Record”?
Records of a law enforcement unit of the University
Medical & mental health treatment records
Alumni data not connected to student status
Employment records not connected to student status
BEFORE I talk about those exceptions – let’s talk about what is an EDUCATION RECORD
Any information directly relating to a student maintained by Penn
BUT NOT: Law enforcement records (Penn Police)
Health or mental health records
Alumni records
Employement records

11. Key Exceptions to Consent Requirement
Two exceptions to the consent requirement are most relevant when using education technology:
Directory Information Exception
School Official Exception
FERPA has many exceptions to the consent requirement
BUT the two most relevant to online education services:
Directory Information Exception
School Official Exception

12. Directory Information Exception
Directory information may be shared provided the student has not “opted out” of allowing such sharing.
Directory information includes:
Student’s name
Address (local, home, )
Telephone number
DOB
Penn ID
Major, dates of attendance, degrees awarded field of study
Directory Information is not considered FERPA data requiring consent – as long as student has not opted out of sharing info.
This type of data may be shared with an online educational service provider WITHOUT STUDENT CONSENT – As long as student has not opted out.

13. School Official Exception
School Officials
Faculty
Staff
3rd party service provider performing work under University supervision
With Legitimate Educational Interests
Information is needed for school official to perform duties
Other Exception – School Official
Can share student data WITHOUT CONSENT if the party is a SCHOOL OFFICIAL with a LEGITIMATE EDUCATIONAL INTEREST in receiving the information.

14. School Official Exception
Third-party service provider is a school official if:
Performs a service for which Penn would otherwise use its own employees
Is under the direct control of Penn regarding use education records
Does not re-disclose or use education records for its own or unauthorized purposes
3rd Party Service Provider can be a “School Official” if performing services for University
Doing a Service that University would otherwise use its own employees
Must be acting under direction of University regarding use of student data
Does not use student data for its own purposes

15. Question 1:
Is student information used in online educational services protected by FERPA?

16. Answer: It depends! Some data may be protected by FERPA:
Enrollment Information
Grade Information
Evaluation of coursework
Other data may not be:
Directory Information (unless student has opted out)
Need to evaluate on a case by case basis to determine if FERPA-protected information is implicated.

17. Question 2:
What does FERPA require if a student’s education record is disclosed to a third-party service provider?

18. Answer: Consent for the disclosure; OR
Disclosure under “School Official” exception
Direct control
Use for authorized purposes only
Limitation on re-disclosure

19. Question 3: What about metadata?
Are there restrictions on what providers can do with metadata about students’ interactions with their services?

20. What is Metadata?
Metadata are pieces of information that provide context to other data being collected:
Activity date and time
Number of attempts
How long the mouse hovered before clicking an answer
Before I give you the answer – how many people know what META DATA IS?
Pieces of information the provide context to other data being collected – what pages were visited, click information, how many times logged in – remember when we talked about the challenges and we talked about new types of data – well this is one – it focuses on behavior

21. Answer:
Properly de-identified metadata may be used by providers for other purposes
Stripped of all direct and indirect identifiers
School name and other geographic information can be indirect identifiers
YES – But only if stripped of all identifiers – direct or indirect
Can include school name or geographic location

22. Privacy Challenges Online educational services:
Offer free or low-cost services to gain access to student data
No contract necessary – or just a click-through agreement
So what are the privacy challenges we are seeing with ONLINE EDUCATIONAL SERVICES
Attractive – offer free or low cost services
Gives them the entry to the student data
They often don’t require a contract -- just a click through agreement

23. Privacy Challenges Online educational services:
Seek to monetize or use student data for their own purposes by having the students agree to Terms of Service or a Privacy Policy
Part of the click through – they have students or the users – agreeing to TERMS OF SERVICE OR PRIVACY POLICIES that allow them to use the data for their OWN PURPOSES

24. Privacy Challenges Problem:
University educational services are conditioned upon students agreeing to allow a third-party to use their data for its own purposes
What if the student does not wish to consent?
Is an alternative offered? 
If no alternative, is the student providing “voluntary” consent to third-party’s use of its data? 
Problem:
When UNIVERSITY SERVICES are CONDITIONED upon AGREEING TO A THIRD-PARTY TERMS OF SERVICE
What is student doesn’t agree – what do we do?
Will there be an alternative?
If no alternative, is that really consent from student perspective?
PUTS US IN A CONUNDRUM

25. Best Practices
When possible, use a written contract or legal agreement with provisions addressing:
Security
Data collection
Data use, disclosure, and destruction
Remember FERPA “school official” requirements:
Direct control
Authorized use
Limits on redisclosure
BEST PRACTICES
Get a contract in place with third-party provider of online educational service – NO CLICKTHROUGHS
Designate as a school official
Set parameters on data use and limits redisclosure

26. Best Practices
Be aware of how online educational services intend to use student data
Provide University Services - OK
Market to Students - NO
Sell Student Data - NO
Understand how student data will be used –
Provide University Services – OK
Sell Data or Market to Students – Not OK

27. Best Practices
If online educational services want consent from students to use data for other purposes:
Must be fully transparent with students
Obtain meaningful, informed consent
Provide students a choice to say “NO” and still receive the education service
Ensure Terms of Service regarding data use cannot be changed without notice to student
Online Educational Services might really push to want to use data for their own purposes –
Service needs to be upfront and transparent with student on how data will be used
Need to obtain explicit, informed prior consent with students
Students NEED TO HAVE A REAL CHOICE - -Ability to say NO.
No Change in Terms of Use without NOTICE

28. Resources www.upenn.edu/privacy Penn Privacy Website Email
Penn’s FERPA Policy
FERPA FAQs
Protect Yourself
Policies and Guidance
Privacy Topics A to Z