ISSUES This report describes:

1. the practice of data collection and analysis known as “data mining,” as used by education technology companies;

2. debated issues surrounding the practice; and

3. state actions to strengthen student privacy protections.

SUMMARY

In the January 2014 issue of State Legislatures Magazine, the National Conference of State Legislatures (NCSL) cited data mining as an emerging issue that state legislatures may address in 2014 and beyond. According to NCSL, public and private organizations engage in data mining when they comb through electronically collected data to look for patterns and relationships. Discovered patterns can be used to tailor services, reduce operating expenses, generate profit, or for other purposes besides the primary purpose for which the data was collected.

Education technology companies that provide services to school administrators, teachers, and student users have the ability to mine student data. These companies that create electronic devices, programs, or applications (i.e., apps) could use these technologies to identify the characteristics and habits of individual student users for various purposes without the users' knowledge or permission. Such purposes include customizing educational products or generating additional profit by (1) selling the data to third parties or (2) using it for marketing purposes. The public debate about student data mining has focused on both its educational benefits and student privacy implications.

Although various federal laws contain provisions protecting students' personally identifiable information (PII) collected in schools and online, they have not been updated to incorporate changes in education technology such as data mining of metadata. The legislatures and governors of several states have addressed this gap by enacting laws and issuing executive orders to create student privacy protections beyond those in federal law.

DATA MINING BY EDUCATION TECHNOLOGY COMPANIES

There are two main types of education technology products: those that (1) organize student records on behalf of school administrators and teachers and (2) provide online academic lessons to students. Table 1 lists examples of these technology products that could be mined for student data.

Table 1: Education Technology Products Suitable for Data Mining

Table 1: -Continued-

Sources: The Pew Charitable Trusts: Stateline, “Protecting Student Privacy in the Data Age,” December 17, 2013; Politico, “Data Mining Your Children,” May 15, 2014; The Washington Post, “How much data is being 'mined' from our kids? More than you know.” October 2, 2014

Education technology products designed for staff could be mined for student PII, while products for student users could be mined for metadata that reveals how students use the products. Consequently, these products allow technology companies to spot patterns and draw conclusions about individual students or groups of students. For example, metadata can help companies draw conclusions about students' academic progress, work habits, learning styles, personal interests, locations, and web-browsing habits, as Politico reports.

DEBATED ISSUES

Current issues in the education data mining debate center on whether (1) companies have exploited student PII or metadata for non-educational purposes and (2) data mining improves academic services or compromises student privacy. The Pew Charitable Trusts' Stateline, Politico, and The Washington Post have followed this debate, and their reports follow proponents' and critics' positions, which appear below.

Regarding the first issue, privacy experts claim it is nearly impossible to tell if student data has been used for non-educational purposes. Nonetheless, privacy advocates and parents have raised concerns about companies' possible misuse of student data by selling the data to a third party or storing it in a manner vulnerable to cyber-attacks.

Regarding the second issue, education technology companies and certain educators argue that they can achieve the following educational advances using mined student data:

● producing digital materials (e.g., textbooks, programs) that self-adjust and personalize instruction to suit each student's learning style,

● improving principals' access to the academic records of intra-district transfer students,

● aiding teacher lesson plans by measuring students' subconscious responses to lessons, and

● increasing student safety by electronically monitoring their whereabouts during school hours.

Furthermore, Politico reports that a 2013 report by McKinsey & Co. found that expanding the use of data in K-12 schools and colleges could improve overall education instruction and efficiency, contributing over $300 billion per year to the U.S. economy.

Data mining critics are concerned that education technology companies could use mined student data in ways that compromise student privacy, including:

● targeting commercial advertisements to the needs of individual students and their parents;

● allowing teachers to easily view students' academic histories and develop negative preconceptions about their capability;

● building student profiles that could be sold to employers, military recruiters, or college admissions officers;

● tracking students' physical locations outside of school hours or off-campus; and

● exposing personal student information stored on vulnerable company databases to cyber-attacks.

FEDERAL LAW AND STATE ACTION

Several federal laws include provisions safeguarding student data, but they were adopted before data mining practices evolved. Table 2 summarizes these protections.

Table 2: Federal Laws Protecting Student Information

Politico reports that U.S. Department of Education chief privacy officer Kathleen Styles has acknowledged that student metadata could be mined using education technology and is likely not protected by FERPA. In many states, legislation or executive orders have addressed this problem, using efforts ranging from imposing data-sharing restrictions on school districts to forbidding education technology companies from using student data for non-educational, commercial purposes. Table 3 provides a sample of recent state efforts.

Table 3: Sample of State Student Data Privacy Protection Initiatives

Sources: The National Law Review, “California Strengthens Student Privacy Protections,” October 6, 2014; The National Law Review, “New York State Requires Parents' Bill of Rights for Data Privacy and Security,” September 5, 2014; The Pew Charitable Trusts, Stateline, “Protecting Student Privacy in the Data Age,” December 17, 2013

HYPERLINKS

State Legislatures Magazine, “Hot on the Horizon,” http://www.ncsl.org/bookstore/state-legislatures-magazine/hot-on-the-horizon.aspx, last accessed November 20, 2014.

The Pew Charitable Trusts, Stateline, “Protecting Student Privacy in the Data Age,” http://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2013/12/17/protecting-student-privacy-in-the-data-age, last accessed November 20, 2014.

Politico, “Data Mining Your Children,” May 15, 2014, http://www.politico.com/story/2014/05/data-mining-your-children-106676.html, last accessed November 20, 2014.

The Washington Post, “How much data is being 'mined' from our kids? More than you know,” October 2, 2014, http://www.washingtonpost.com/blogs/answer-sheet/wp/2014/10/02/how-much-data-is-being-mined-from-our-kids-more-than-you-know/, last accessed November 20, 2014.

The National Law Review, “California Strengthens Student Privacy Protections,” October 6, 2014, http://www.natlawreview.com/article/california-strengthens-student-privacy-protections, last accessed November 20, 2014.

The National Law Review, “New York State Requires Parents' Bill of Rights for Data Privacy and Security,” September 5, 2014, http://www.natlawreview.com/article/new-york-state-requires-parents-bill-rights-data-privacy-and-security, last accessed November 20, 2014.

California Legislative Information, SB 1177, http://leginfo.ca.gov/pub/13-14/bill/sen/sb_1151-1200/sb_1177_bill_20140929_chaptered.pdf, last accessed November 20, 2014.

California Legislative Information, AB 1584, http://leginfo.ca.gov/pub/13-14/bill/asm/ab_1551-1600/ab_1584_bill_20140929_chaptered.pdf, last accessed November 20, 2014.

The State of Georgia, Executive Order, http://gov.georgia.gov/sites/gov.georgia.gov/files/related_files/document/05.15.13.01.pdf, last accessed November 20, 2014.

LegiScan, New York Senate Bill 6356D, http://legiscan.com/NY/text/S06356/2013, last accessed November 20, 2014.

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