You Have Until Monday, May 23...to Object to DOE's Invasion of Student Privacy

Arne Duncan has invited taxpayers to make comment regarding possible changes in the Federal Educational Rights and Privacy Act (FERPA). The Department of Education is attempting to change FERPA to allow private and invasive information to be gathered on students and families in order to supply the workforce. As we have stated in this blog many times, the information does not assist in delivery of providing better education for students, rather, the information is to provide data to the Departments of Labor and Health and Human Services to provide the workforce.

We are circulating the information sheet (below) to inform taxpayers and American citizens in this extreme governmental effort to breach your child's and your family's privacy. Please read and if you are concerned about this overreach of the Department of Education, you have until Monday, May 23, 2011 to make public comment to the Department of your opposition of the broadening of governmental regulation.

At the end of the information sheet is the email address to use for your comments. Circulate this information to people you may know who value their privacy and object to the DOE's plan to profile your child from pre-school to age 20 and through the workforce.

**********************************************

OBJECT TO DOE’S PROPOSED INVASION OF STUDENT PRIVACY

The Department of Education (DOE) has proposed regulatory changes that would gut the primary federal student-privacy statute, the Family Educational Rights and Privacy Act (FERPA). FERPA imposes strict limits on how the government may use so-called Personally Identifiable Information (PII) collected on students by schools or government education agencies. Under the proposed changes to the regulations issued under FERPA, DOE would enable a system of massive data collection on students – potentially including such things as family income range, hair color, blood type, and health-care history – that could then be shared with other government agencies (both federal and in other states) for unspecified purposes. This disclosure of PII could be accomplished without parents’ consent, and in most cases without even their knowledge. And because the data-collection and sharing would begin when the student is in preschool and follow him even through his entry into the workforce, the possibilities of breach of privacy and unwarranted use of data are almost limitless.

The concept of “state longitudinal data systems” (SLDS) is the driving force behind the proposed regulatory changes. In its attempt to further federalize education through Race to the Top and other statutes, DOE wants to construct massive and interconnected data systems that will allow various government agencies – and even private entities, perhaps including employers -- to access students’ personal information without the knowledge or consent of the students or their parents. SLDS structures in some states, such as Illinois, already contemplate the sharing of PII for purposes far beyond effective education of children – for example, to create “a network of federal, state, and local offices that . . . facilitate the development of the United States workforce.” Indeed, DOE itself argues that “there is no reason why a State health and human services or labor department, for example, should be precluded from . . . receiving non-consensual disclosures of PII to link education, workforce, health, family services, and other data” for the purpose of “evaluating” education programs. The proposed changes to the FERPA regulations are a blatant attempt to bypass Congress, and therefore the American people, by weakening the privacy law to facilitate radically increased government control over individuals’ lives.

Listed below are some specific objections that can be made to the proposed changes. Comments can be registered at http://www.regulations.gov. (See below for more specific information for the comment process.) The deadline for commenting is Monday, May 23, 2011.

• Authorized Representative – DOE proposes to define “authorized representative” (i.e., the individual or entity authorized to receive Personally Identifiable Information (PII) on students) in a way that greatly expands the universe of bureaucrats or even private entities that might be allowed to access PII. Throughout FERPA’s existence, DOE has interpreted the statute to allow nonconsensual disclosure of PII only to officials of state or local educational authorities, or to the agencies headed by certain federal officials (Secretary of Education, Comptroller General, or Attorney General). The proposed change would allow any of these people to designate other bureaucrats in other agencies – such as state employment or public-health agencies – or even private entities as “authorized representatives” for purposes of accessing PII. This is a radical change to the interpretation of FERPA, and a substantial limitation on its privacy protections.

n

• Education Program – DOE proposes to define “education program” in a way that would further expand the reach of bureaucrats into private student data. The current interpretation of FERPA allows nonconsensual disclosure of PII during audits or evaluations conducted of federally funded “education programs” that are administered by educational authorities. The proposed changes would broaden this PII access to any program that could even be marginally considered “educational,” even if not conducted by an educational authority. The concern is that designating something as an “education program” to be “evaluated” becomes an excuse for gaining access to data from that program.

• Research Studies – DOE proposes to greatly expand access to PII for use in “research studies.” Currently, FERPA allows nonconsensual disclosure of PII by educational agencies and institutions (with strict limitations) to companies that are conducting research on behalf of those agencies or institutions. The proposed changes would allow agencies further up the food chain – those that receive such PII from other agencies or institutions -- to disclose that data for their own research purposes, and to do so without express legal authority. Thus, for example, a school may turn over PII to DOE as part of regular procedure and not be told that DOE is disclosing that data to a research company. And if the school discovered, and objected to, the redisclosure, DOE would not even have to point to an express legal authority for its action. “Implied authority” would be sufficient.

• Authority to Audit or Evaluate – DOE proposes to allow state or local educational authorities, or agencies headed by the Education Secretary, the Comptroller General, or the Attorney General, to conduct audits, evaluations, or compliance activity without establishing that they have legal authority to do so. The longstanding interpretation of FERPA is that any entity seeking to audit or evaluate a program must cite particular federal, state, or local legal authority for this activity, because FERPA itself confers no such authority. DOE proposes to allow such activities – with their consequent access to PII – to be conducted even by entities that can show no legal right to engage in them. Apparently, “I’m from the government and I’m evaluating this program” will be sufficient to access the data.

• Enforcement – DOE proposes to extend its FERPA enforcement authority beyond “educational agencies or institutions” to include any other recipients of federal funds that may misuse PII. Such entities might include, for example, student-loan lenders. While DOE’s vast expansion of access to PII would greatly increase the potential for misuse of that data, and therefore would indicate the need for broader enforcement authority, the fact remains that Congress is the only entity that is entitled to make this change. FERPA spells out DOE’s enforcement authority, and DOE cannot change this statutory law merely by changing the regulations.

There are three key points to be made regarding these proposed changes: 1) DOE is weakening longstanding student privacy protections by greatly expanding the universe of individuals and entities who have access to PII, by broadening the definition of programs that might generate data subject to this access, and by eliminating the requirement of express legal authority for certain governmental activities; 2) DOE’s proposed interconnected data systems could be accessed by other departments, such as Labor and Health and Human Services, to facilitate social engineering such as development of the type of “workforce” deemed necessary by the government; and 3) DOE is attempting to evade Congress by pushing through these radical policy changes by regulation rather than legislation.

**********************************************

The document details and the specific language of the FERPA revisions the Department of Education is requesting may be found here:

http://www.regulations.gov/#!documentDetail;D=ED-2011-OM-0002-0001

Click on the "comment due" wording and it will take you to the comment form OR

The comment form may be found here:

http://www.regulations.gov/#!submitComment;D=ED-2011-OM-0002-0001

Here is a summary from the Federal Register:

http://www.federalregister.gov/articles/2011/04/08/2011-8205/family-educational-rights-and-privacy