COMMENTARY: Don’t let edtech weaken student privacy legislation

The Delaware legislature will soon be debating Senate Bill 79, which is designed to protect the personal digital privacy and safety of students and their families. The introduction of this bill is a positive step and demonstrates the leadership role that Attorney General Denn and the state legislature are taking to ensure that student data is kept safe and secure.

This legislation was introduced to fill a void in the current data privacy protections that are afforded to Delaware students and their families. SB 79 is modeled after California’s landmark SB 1177, otherwise known as the Student Online Personal Information Protection Act, which enhanced student digital data protections.

California’s new student privacy law created a domino effect; according to the Data Quality Campaign, at least 177 bills have been introduced in 45 states dealing with student data privacy since the beginning of this year. SB 79 would bolster existing legal protections for K-12 student data and it would help to prevent education technology vendors [hereinafter, “edtech”] from using student data to target ads to students and creating student profiles for non-educational purposes. The need for this bill was made clear last year, when Google was caught scanning student emails for advertising purposes despite public assurances to the contrary.

Bradley Shear

While I am cautiously optimistic that the current draft of SB 79 will be enacted, I was similarly hopeful regarding my home state of Maryland’s recently enacted House Bill 298, which was also initially modeled after California’s SB 1177. I testified on behalf of Maryland’s student data privacy legislation and was extremely disappointed that the final version was intentionally gutted by the powerful edtech lobby.

According to the Maryland bill’s oral testimony, Facebook and Google were two of the companies represented by industry lobbyists that fought to weaken the legislation. Delaware lawmakers need to be aware that the edtech lobby may utilize the same intentionally misleading arguments that weakened Maryland’s new law to water down SB 79.

The edtech lobby may propose amendments that would severely hinder the bill’s current protections. For example, they could offer an amendment to expand the definition of “targeted advertising” to allow for more robust behavioral data collection and usage by vendors. Another potential amendment would allow for what the lobby has called “recommendation engines,” which is code for “data mining” or “user profiling” and has no place in an educational setting.

Edtech’s heavy hitters from around the country may soon start visiting Delaware lawmakers in an attempt to weaken SB 79’s protections. Some of these lobbyists may promote enabling parents or guardians to provide consent to utilize their kids’ data for marketing or advertising purposes. In general, I am in favor of parental choice; however, in this case I am not.

If parental consent to use student data for marketing purposes is allowed, some edtech vendors may prey on under-funded school districts and require families to sacrifice their children’s personal privacy to obtain access to new educational tools. Parents will be forced to give up their kids’ personal information for access to new digital learning technology. This Hobson’s Choice is discriminatory and has no place in our society.

Parents rightly want their children to have access to the latest and greatest educational platforms. However, families need assurances that their kids’ privacy will be protected when innovative digital tools are brought into the classroom. SB 79 as written goes a long way to reaching that goal.

It is imperative for Delaware parents and privacy advocates to stand up and voice their strong support for greater student privacy protections.

Therefore, I urge Delaware to learn from what happened in Maryland and to fight against weakening SB 79.

Editor’s note: Bradley Shear is a Maryland parent of two young children and a privacy- and data-protection lawyer who focuses on student-privacy matters.