The Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99) is a Federal law that protects the privacy of student education records. The law applies to all schools that receive funds under an applicable program of the U.S. Department of Education. FERPA gives parents certain rights with respect to their children’s education records. These rights transfer to the student when he or she reaches the age of 18 or attends a school beyond the high school level. Students to whom the rights have transferred are “eligible students.”
Schools may disclose, without consent, “directory” information, which is defined at Liberty University to include a student’s full name, address including e-mail address, telephone number, date and place of birth, major or program of study , grade level, enrollment status, dates of attendance, photograph, height and weight of student athletes, participation in officially recognized activities and sports, degrees and awards received, degrees, honors, and awards received; and the most recent previous education institution or agency attended.However, schools must tell eligible students about directory information and allow eligible students to request that the school not disclose directory information about them. Schools must notify eligible students annually of their rights under FERPA.
FERPA is considered to be the underpinning law for educational institutions. FERPA is a federal privacy law that aims to protect the privacy ofstudent education records, to provide students with rights to inspect and contest their records, and to provide guidelines for dealing with inaccurate data by means of formal and informal hearings. The law is applicable to any institution that receives funds under the U.S. Department of Education.Students and/or parents have the right to inspect their educational records and to request correction of data reflected in the educational records. Moreover, educational institutions are prohibited from disclosing information about students without written permission. FERPA defines a student record as any record relating to the student maintained by the organization. Non-directory information like birth date, religion, citizenship, gender, GPA, student ID, marital status, and grades are protected under FERPA. Conversely, directory information such as - name, address, email address, telephone number, major, dates of attendance, degrees and awards achieved – is excluded from protection granted by FERPA. Directory information is defined by FERPA as information contained in the education records that would not be considered harmful or as an invasion of privacy if disclosed. This vague definition should be narrowed down or more precisely defined by the academic institution’s policies. With the given definition, a student’s email address could be given out to an malicious inquirer, who in turn might send spam or junk mail to the students. A local education agency “may, but does not have to, include all the information listed” above. (U.S. Department of Education). With this in mind it is important for policy makers to consider what kind of student directory information to provide to the public. While directory information is not protected under FERPA, the act could potentially be interpreted to impose liability on an academic institution that neglected to effectively protect student records (non-directory information) from unauthorized access. Page 2
HIPAA serves to protect the rights of individuals health information participating in certain health coverage plans and governs the use and disclosureof such records. Academic institutions associated with health care providers must provide written notice of their associated health care provider’s information practices. Organizations that fall under HIPAA must “(i) adopt written privacy procedures that describe, among other things, who has access to protected information, how such information will be used, and when the information may be disclosed; (ii) require their business associates to protect the privacy of health information; (iii) train their employees in their privacy policies and procedures; (iv) take steps to protect against unauthorized disclosure of personal health records; and (v) designate an individual to be responsible for ensuring the procedures are followed.” (Cassat) HIPAA already implies serious penalties for organizations that fail to comply. Recent changes to HIPAA were enacted under the Health Information Technology for Economic and Clinical Health Act (HITECH) resulting in an increase in civil penalties of up to $1.5 million per year in fines for organizations failing to comply. Furthermore, intentional disclosure of physical health information can now be criminally prosecuted under HITECH; affected patients/users of security breaches or lost records must be notified; if a record loss affects more than 500 individuals, the Secretary of the Department of Health and Human Services must be notified. (Mortman) The aforementioned changes will go into effect in February of 2010. It is apparent that the United States government is taking the security and privacy of medical records far more seriously than it has in the past. Organizations that fall under HIPAA are urged to review their security and privacy policies and practices and evaluate their organizations compliance. Page 3
The ECPA was passed by Congress to protect privacy potentiallycompromised by emerging technologies. In contrast to FERPA and HIPAA, theECPA applies to all entities, prohibiting the unauthorized interception of oral orelectronic communication. The ECPA implies a liability on any individual who (i)intentionally accesses without authorization a facility through which an electroniccommunication service is provided, or (ii) intentionally exceeds an authorizationto access that facility and thereby obtains, alters or prevents authorized access toa wire or electronic communication while it is in electronic storage. (U.S.C. §2701) ECPA applies to providers of public communication where the substance,purport or meaning of the communication is intercepted. Thus the ECPA wouldallow for network monitoring and would not apply to internal networks oforganizations as they constitute private electronic communication (Cassat).However, higher education institutions often provide communication services tothe public, thus the correct application of ECPA depends on the relation of theuser and the organization. For example, a member of the public using a state university library’s communication infrastructure, would be protected by ECPA. Page 4
The CFAA imposes criminal penalties for unauthorized access to aprotected computer on anyone who willingly intends to obtain information, todefraud, or to cause damage to the computer. CFAA only applies to computersused in interstate commerce, international commerce, computers used byfinancial institutions and computers used by the United States government. (U.S.C § 1030(e)(2)) Page 5
The most significant aspect of the patriot act that applies to highereducation is the mandate requiring the INS to implement the Student andExchange Visitor Information System (SEVIS). SEVIS is an internet-basedsystem enabling schools, the United States of Citizenship and ImmigrationServices (USCIS) and Immigration and Customs Enforcement (ICE) to transmitdata about international students for purposes of tracking and monitoring.Information that is stored in SEVIS includes the name, date and place of birth,country of citizenship, current address, academic stats, commencement date,degree program and field of study, completed credits per semester, terminationdate, admissions documents, as well as a photocopy of the students immigrationdocuments. The patriot act also facilitates and legalizes the access to confidentialinformation for law enforcement personnel, while barring the institution from revealing the existence of law enforcement investigations. Page 6
The TEACH Act facilitates the legal use of intellectual property for highereducation by relaxing copyright restrictions. The Teach Act permits faculty andstudents of educational institutions to transmit copyrighted materials as part ofgiven academic curriculum. However, the act imposes obligations on academicinstitutions as it may be interpreted to require the institution to implementdigital rights management solutions for distance education to prevent unlawfultransmissions and enforce copyright. Despite these implications, “The Teach Actapplies only if you choose to use it. […] You can still turn to fair use or licensing” (Crews) Page 7
GLBA applies to financial institutions as well as higher educationinstitutions and creates requirements for protecting financial data. Names,addresses, account numbers, credit information, and Social Security numbersmust be secured by comprehensive security programs mandated by the GLBA.Furthermore, the act requires colleges and universities to assess the need foremployee training and ensure compliance in agreements with third parties having access to financial records. Page 8
The Federal Regulations of Civil Procedures imposes, as the name implies,regulations on the procurement of evidence in Federal cases and imposesliabilities on organizations that are not in compliance with the law. The FRCP wasamended in December, 2006 requiring that all organizations must meet thediscovery requirements. In the event of a civil litigation, all electronically storedinformation (ESI) such as email and instant messaging communications relatingto the case must be produced by the affected institution. FRCP does not explicitlymandate archiving these types of communication records, but does imposepenalties for not being able to produce relevant ESI when mandated by a court of law. |
Do institutions have the liberty to define what they consider directory information within certain guidelines?
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