Issues to Consider While Preparing for Distance Education: Part I – Privacy, Notice, and Consent

03.30.2020

This Alert raises various privacy, notice, and consent issues local education agencies (LEAs) should consider as they transition to distance learning programs.  Privacy considerations implicated by the transition to electronic distance learning, and parent notice and understanding of these issues, are the focus of this Alert.  An alert related to the personnel considerations is forthcoming.

LEAs are turning largely to various synchronous (students and instructors are online at the same time and interacting in real time) and asynchronous (student and instructor interactions are not in real time) technological methods to deliver educational content:  livestreaming, videoconferencing, streaming pre-recorded content, etc.  For most LEAs – as well as their students, families, and staff – this is a wholesale shift in how they provide high quality educational services.

There are a number of laws aimed at protecting students, student information, and student privacy to consider, including several specific to the use of various online tools and resources.  There are other legal protections that are not specific to uses of technology, but which are implicated by online distance learning.  LEAs may already be familiar and complying with these laws, but will need to consider whether they should take further steps to remain in compliance during the transition to a distance learning program.  LEA policies, such as those governing acceptable use of technology and nondiscrimination, also continue to apply, though the mode of instruction has changed to a distance learning model.  Laws and legal rights that may be implicated by distance learning using technology include:

1. Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 C.F.R. Part 99.): The purpose of FERPA is to protect the privacy of students’ education records.  FERPA provides that, subject to certain exceptions, an educational institution must obtain consent from parents or guardians before sharing students’ personally identifiable information.
2. Children’s Online Privacy Protection Act (COPPA) (5 U.S.C. § 6501 et seq., 16 C.F.R. § 312.1 et seq.): Requires that an operator of a commercial website or online service that is “targeted to children” and/or “has actual knowledge that it is collecting personal information from a child,” obtain parental consent before collecting “personal information” from any child under the age of 13.  LEAs are generally authorized to provide consent on behalf of parents for a student’s use of websites/online services.  However, an LEA’s ability to consent for parents is limited to the educational context – where an operator collects personal information from students for the use and benefit of the school, and for no other commercial purpose.  As a best practice, LEAs should consider providing parents with a notice of the websites and online services with which the LEA will be sharing the parental consent.
3. Student Online Personal Information Protection Act (SOPIPA) (California Business & Professions Code 22584 et seq.): This California law requires education technology providers to comply with baseline privacy and security protections, such as prohibiting targeted advertising using the information acquired from students, protecting the privacy of student records, and prohibiting the sale of student information. 
4. California Education Code Section 49073.1: Permits LEAs to enter into contracts with third parties to provide services for digital storage, management, and retrieval of pupil records and to provide digital educational software that authorizes the provider to access, store, and use pupil records.  The law mandates nine minimum contract requirements, including, but not limited to, provisions addressing the ownership and control of pupil records; a prohibition against unauthorized use of pupil records; and a description of actions the third party provider will take to ensure the security and confidentiality of pupil records.
5. California Constitutional Right to Privacy (Cal. Const., art. 1, § 1.): The California Constitution gives each citizen an inalienable right to pursue and obtain privacy. Claims of violations of this Constitutional right, and the related common law tort of intrusion, both turn in large part on whether the claimant had a reasonable expectation of privacy under the circumstances.

We advise LEAs to consult with their internal IT experts and legal counsel to assess third party contracts and requirements of platforms, apps, and services the LEA plans to use to support its distance learning program to assist them in achieving their goals and to best ensure compliance with applicable privacy laws, as well as other legal requirements. 

Many school districts already are using various online learning platforms as a supplement to in-person classroom instruction.  We recommend that notice be provided to parents/guardians about at least any new online distance learning programs.  In cases in which LEAs will be providing synchronous instruction through live streaming, videoconferencing, or other interactive methodologies by which students are engaged in live electronic communication with their teachers and/or classmates, that notice should specifically inform parents/guardians and students that they do not have a reasonable expectation of privacy in information and images that can be perceived through audio and/or video during the use of such programs. 

The specific form and content of such notices may differ from LEA to LEA.  What to include will depend on a number of facts and considerations, including but not limited to, what type of distance learning program is being implemented, whether the LEA is providing the devices and/or internet access, and the content of the LEA’s existing board policies, and acceptable use of technology policies and agreements.  Some of the issues to consider addressing through such a parent notice include:

• How to transmit the notice to the parents, and whether to require confirmation of receipt and/or consent to the student’s participation.
• What options may be available for alternate delivery methods for comparable educational content. Any distance learning program must address concerns of equity and access that might arise based on differential access to Internet connectivity and technology, including providing multiple options and a combination of strategies to students, depending on the various accessibility and equity issues at hand.  LEAs must also ensure compliance with the rights of students with special needs.  More information about meeting the needs of students with special needs during COVID-19 school closures can be found in our previous Alerts found here:  https://www.aalrr.com/newsroom-alerts-3624 and https://www.aalrr.com/newsroom-alerts-3645.
• How to respond to the possibility that students may record the instruction on their devices.
• Whether the LEA or individual teacher may want to record the live lessons for future reference or use, including so that students may view/stream them at a later time.
• The degree to which an LEA will define and describe the online learning program and how it will be implemented.
• Whether and in what detail to include the rules and requirements regarding use of technology and incorporation of and/or updates to the LEA’s standard acceptable use of technology agreement(s).
• Whether and in what detail to include guidelines and suggestions for successful use, particularly for interactive communications sessions. (E.g., advising parents that students be in a quiet, more private location.)
• Consequences, including student discipline, for violations of expectations and requirements.
• Inclusion of disclaimers.

AALRR anticipates delving deeper in future Alerts and/or blog posts into issues related to distance learning, including collective bargaining issues.  Please contact the authors or the AALRR attorney with whom you work with your questions so we can better tailor our advice, alerts, and blogs.  As LEAs are no doubt already learning during this transition process, there are a variety of questions, concerns, and unanticipated issues that arise in the context of transitioning students to distance learning, whether through electronic means or otherwise, notwithstanding the relief from the typical funding implications during COVID-19 closures.  We also expect new and previously unexpected issues to arise as the use of these distance learning services expands, and recognize that best practices may develop and change over time in response to practical and legal issues that emerge.  LEAs will need to continue being flexible and agile in responding and improving practices over time. 

We encourage LEAs to work closely with their various internal experts – including in the areas of educational services, services to students with special needs, and information technology – as well as with their legal counsel to address educational, technological, practical, and legal impacts of distance learning.  We further recommend that LEAs work with their legal counsel in the development and/or review of any online learning policy and/or notice to support electronic distance learning programs and services.

These AALRR publications are intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR presentation/publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.

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