Reclaiming 'The Right to Be Let Alone': Seeking Transparency & Uniformity in the Unchartered Territory of Student Data Mining

Abstract

In the wake of the digital age, educational institutions are having an increasingly difficult time protecting students’ constitutional rights and instead are impinging on their “right to be let alone.” Schools are undergoing a transformative metamorphosis as the teaching tools of yesteryear are rapidly being replaced with advanced technologies to better assess an individual student’s learning needs. Data-driven decision-making is now becoming the status quo for school districts to facilitate the achievement of educational objectives, maintaining cost-effective classrooms and engaging both students and parents alike. As a result, incomprehensible amounts of student data needs to be processed analyzed and stored for each and every student, each and every day, over the course of their K-12 education. This singular shift in education instruction could have unforeseen costs because “once data is collected, it can be very difficult to keep anonymous.” Now the personal student information, compiled for a defined educational purpose, creates considerable temptation to use if for other reasons like target advertising or profiling. Without adequate and transparent privacy protections, companies can collect and sell years’ worth of student data to third parties with impunity. Parents, worried about their children’s data and security, are becoming increasingly frustrated that protected information could easily shared with third parties, without appropriate contractual and legal safeguards. In the face of mounting public criticism and activism against student data mining, the Obama Administration recently proposed a Student Digital Privacy Act to better safeguard student privacy from big data. In a speech previewing several cybersecurity measures, President Obama stated that, “data collected on students in the classroom should only be used for education purposes – to teach our children, not to market our children.” Despite its good intentions, the recently proposed student privacy initiative has garnered critics from diametrically opposed viewpoints. Several members of the $8 billion dollar educational software and technology industry are skeptical about the utility legislation, calling it unnecessary, while many privacy advocates counter the initiative does not go far enough to protect student privacy. The problem remains how to better balance the tension between encouraging educational technology opportunities for teachers and school districts without sacrificing the robust protection of student privacy interests and civil liberties. Part One of this paper will discuss the different uses and categories for educational technologies in the digital age and their increasing proliferation into the classroom and market. Part Two will examine the evolution of longitudinal student data tracking and how that ushered the introduction of big data in K-12 public education. Part Three will consider the rising tide of ethical concerns surrounding student data and what factors make children more vulnerable to exploitation by third party data vendors. Part Four will then focus on how the existing federal frameworks and state law leave wide gaps that make their ability to meaningfully protect student privacy rights inadequate in today’s era of big data. Finally, Part Five will examine how to address these ethical concerns head-on with potential solutions parents, school districts state and federal legislatures, and private sector companies can adopt in order to better protect their students from third party data mining.