BILL NUMBER:S1581A

TITLE OF BILL:  An act to amend the education law, in relation to the
release of personally identifiable student information by school
districts

PURPOSE:

To enhance privacy protections to students' personally identifiable
student information contained in student education records maintained
by schools and school districts and place additional restrictions on
the release of personally identifiable student information.

SUMMARY OF PROVISIONS:

The Education Law is amended by adding a new section 3212-b to
describe the lawful and unlawful dissemination of disclosable
directory information and personally identifiable student information.
This new section defines, under this act, student; school; disclosable
directory information (DDI); and personally identifiable student
information (PISI).

Subsection 2 stipulates the legal dissemination of disclosable
directory information and the provisions for the parents or student in
attendance from opting-out of the dissemination of such information,
and the prohibition of the dissemination of personally identifiable
              

student information, unless the school receives the affirmative
consent to do so from the parent or student in attendance.

Disclosable Directory Information (DDI). The dissemination of a
student's educational record within the school district is not
restricted, and will comport with existing laws and regulations within
said school district. A school district may disseminate students'
directory information to the parent or student in attendance, and any
educational agency, organization, or institution; and a school
district may disseminate students' directory information to a school
club, newspaper, yearbook, honor roll, and the like, unless the parent
or student in attendance prohibits the school district from doing so.

Personally Identifiable Student Information (PISI). A school district
may only distribute this information with the affirmative consent of
the parent or student in attendance. If a parent or student grants the
affirmative consent, the school may disseminate PISI to: another
parent or student in attendance at the school; to non-profit that
seeks the information for a specific purpose deemed to be beneficial
for the student, and that has not violated the disclosure procedures
stipulated in this section. If the third party violates the wishes of
the custodial parent or student over the age of 18, it is prohibited
from receiving this information for a period of five years.
Furthermore, even with the affirmative consent of the parent or
student in attendance, the school is prohibited from disseminating
students' PISI to a third party for profit-making purposes, such as
for marketing products or services, and selling the information for
commercial purposes.

Subsection 3 outlines the procedures for school districts notification
of parents or students of their rights under this bill. To achieve


active parental consent, within the first week of each new school
year, the school district must issue a public notice, include in the
student handbook, and send home with the student, information
stipulating the disclosure procedures for the DDI and PISI. The
disclosure information shall consist of the definition of disclosable
directory information and personally identifiable student information
as defined in this act; the procedures for obtaining affirmative
consent for prohibiting the school district from disseminating the
student's DDI to a third party for nonprofit purposes; the procedures
for obtaining affirmative consent for authorizing the school district
to disseminate the student's PISI to a third party for non-profit
purposes.

If the school district does not receive a response from the parent or
student 30 days of the dissemination of the disclosure information
notice, the school district will operate under the premise that: (i)
The parent or student did not opt-out, thus allowing the school
district to disseminate the DDI to a third party for non-profit
purposes: and (ii) the parent or student did not opt-in, thus
prohibiting the school district from disseminating the PISI to a third
party for nonprofit purposes.

Subsection 4 states that the new law shall not limit an employee of
the board of education, state, court, of federal government from
public school records purely for administrative purposes. Subsection 5
provides for exemptions with regard to military recruitment, in order
to comply with federal law.

Section 2 of the bill sets the effective date.

EXISTING LAW:

Currently, under the federal Family Education Rights Privacy Act,
known as FERPA, schools are required to notify parents at the
beginning of the school year of their right to "opt out" of school
disclosure of a student's personally identifiable information.  This
information, which is maintained by the school, is defined under FERPA
as "information..., that would not generally be considered harmful or
an invasion of privacy if disclosed." Students' personally
identifiable information may be requested by and disclosed to
for-profit organizations related to school activities, such as school
ring companies or athletic team apparel and equipment. However, under
FERPA, there are no restrictions on who may request or receive this
information from a school. The U.S. military and institutions of
higher learning have access to student directory information without
parental or student consent. A school also can release a student's
personally identifiable information to another school, the New York
State Education Department, or law enforcement agencies as necessary
without alerting parents and/or students. A school must annually
notify students of their rights under FERPA. The annual notification
must include information regarding a student's right to inspect and
review his or her education records, the right to seek to amend the
records, and the right to consent to disclosure of personally
identifiable information from the records. However, FERPA does not
require the school to notify students of these rights on an individual
basis, so the school may meet FERPA requirements by posting this
information on its website, school calendar, or student handbook, for


example. Also, under FERPA, non-consensual disclosure of Directory
Information may be released to school-related organizations and
businesses. There are no provisions governing the re-selling of this
information in secondary markets, including to marketers or other
nonacademic-related companies, for example. Nor are there civil
penalties to parties that misuse personal and identifiable information
about students. Therefore, once a student's personally identifiable
information is disclosed, it is difficult to control how and where it
is disseminated. This may result in student's personally identifiable
information being used in direct marketing campaigns and targeted
advertising. The information, once released, also has the potential to
compromise student safety and security if used by the wrong parties.

JUSTIFICATION:

New York has the opportunity to enhance and strengthen privacy
protections for its students, which is especially critical as
personally identifiable information will be digitized and shared
electronically to audit and evaluate state and local education
programs and to support the Statewide Longitudinal Data Systems. This
makes data security and student safety of paramount concern and the
State has an interest to ensure the disclosure of students' personally
identifiable information meets the standards of the Fair Information
Practice Principles, as outlined by the Federal Trade Commission:
notice/awareness, choice/consent, access/participation,
integrity/security, and enforcement/redress.

While FERPA protects student information privacy it does not go far
enough, nor does it adequately address the privacy issues of the
electronic age and the capacity of marketers and other commercial
enterprises to capture, use, and re-sell student information. Even
with privacy controls in place, it is also far too easy for
individuals to get a hold of student information and use it for
illegal Purposes, including identity theft, child abduction in custody
battles, and domestic violence.

Therefore, this proposed legislation will enhance the protection to
New York students and their families by stipulating that a student's
personally identifiable information will only be disclosed to a third
party for non-profit purposes with the consent from the parent or
student, if the student is over age 18. Further, directory
information, which can be disclosed under current law, may be
restricted at the request of a parent or student over the age of 18.
Lastly, this bill further enhances privacy by completely prohibiting
the disclosure of directory information or personally identifiable
information to a third party for Profit-making purposes.

This legislation will give parents and students greater control over
disclosure of personally identifiable information to third parties.
It will protect students from their personal information being used by
marketers who re-sell their information in secondary markets. The
sophisticated electronic systems used to identify and breach the
privacy of individuals should not have access to the personally
identifiable information of vulnerable students. This added protection
to New York students would protect them from opportunistic marketers
and from identity theft.


Schools have been found to have varying degrees of conformance with
the basic FERPA privacy requirements. Schools must become more
proactive in providing parents with adequate notice of their rights to
keep students' information private and handling the information as
sensitive data. New York has the opportunity to become a national
leader in helping schools to protect students from violations of their
privacy by affording them added protections and the option not to
disclose locator information. Recent proposed amendments to FERPA
underscore this need, as students' personally identifiable information
and data will be mined for the Statewide Longitudinal Data Systems,
audit and evaluation of education programs, and research projects.
Student data will be shared across government agency systems and with
researchers, increasing the risk of data breaches and privacy
violations. The proposed New York legislation would further restrict
the release of personally identifiable information so that there will
be fewer opportunities for data security to be compromised and do harm
to an individual or group of students.

Students need and deserve this extra protection. In the digital age,
the line between a computer-based school directory and the online
world is rapidly disappearing. Computer security breaches are rampant,
exposing supposedly private and proprietary information to online
databases. New York should not wait for a major breach of student
information with serious consequences before acting.  Currently, the
online collection of personal information from children under age 13
is protected under the Federal Trade Commission's Children's Online
Privacy Protection Act (COPPA). COPPA outlines requirements of a
website operator's privacy policy, when and how to seek verifiable
consent from parents, privacy protections for children, and
restrictions on marketing to children. Students deserve no less than
the same kind of robust privacy Protections for their personal
information maintained by their schools.

This legislation would create additional and needed privacy
protections for students while not imposing any mandates or requiring
additional spending by New York schools. The legislation will remind
schools of their very serious obligation to protect student privacy,
the risks of disclosing student information to commercial enterprises,
and the challenges of collecting and disseminating personal data in
the digital age. Schools are stewards of students' personally
identifiable information and as such must adhere to the highest
standards of practice in protecting privacy and confidentiality. This
legislation will provide those standards and serve as a model for
other states seeking to protect the privacy, safety, and security of
its students.

LEGISLATIVE HISTORY:

2011-12: S.2357C - PASSED SENATE; REFERRED TO EDUCATION

FISCAL IMPLICATIONS:

None.

LOCAL FISCAL IMPLICATIONS:

None.


EFFECTIVE DATE:

Shall take effect on July 1, 2014 and shall apply to school years
beginning with the 2014-15 school year.