senate Bill S2357C

Relates to notification of parents when student directory personal contact information is released to third parties; provides an opportunity to opt-out

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 19 / Jan / 2011
    • REFERRED TO EDUCATION
  • 04 / May / 2011
    • AMEND (T) AND RECOMMIT TO EDUCATION
  • 04 / May / 2011
    • PRINT NUMBER 2357A
  • 06 / Jun / 2011
    • AMEND (T) AND RECOMMIT TO EDUCATION
  • 06 / Jun / 2011
    • PRINT NUMBER 2357B
  • 16 / Jun / 2011
    • COMMITTEE DISCHARGED AND COMMITTED TO RULES
  • 16 / Jun / 2011
    • ORDERED TO THIRD READING CAL.1337
  • 17 / Jun / 2011
    • PASSED SENATE
  • 17 / Jun / 2011
    • DELIVERED TO ASSEMBLY
  • 17 / Jun / 2011
    • REFERRED TO EDUCATION
  • 04 / Jan / 2012
    • DIED IN ASSEMBLY
  • 04 / Jan / 2012
    • RETURNED TO SENATE
  • 04 / Jan / 2012
    • REFERRED TO EDUCATION
  • 11 / Jan / 2012
    • AMEND AND RECOMMIT TO EDUCATION
  • 11 / Jan / 2012
    • PRINT NUMBER 2357C
  • 05 / Jun / 2012
    • 1ST REPORT CAL.1030
  • 06 / Jun / 2012
    • 2ND REPORT CAL.
  • 11 / Jun / 2012
    • ADVANCED TO THIRD READING
  • 21 / Jun / 2012
    • COMMITTED TO RULES

Summary

Requires notification of parents when student directory personally identifiable information is released to third parties; provides an opportunity to opt out.

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Bill Details

Versions:
S2357
S2357A
S2357B
S2357C
Legislative Cycle:
2011-2012
Current Committee:
Senate Rules
Law Section:
Education Law
Laws Affected:
Add ยง3212-b, Ed L

Votes

Sponsor Memo

BILL NUMBER:S2357C REVISED 01/13/12

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:
06/17/11 PASSED SENATE
06/17/11 DELIVERED TO ASSEMBLY
01/04/12 DIED IN ASSEMBLY
01/04/12 RETURNED TO SENATE
01/04/12 REFERRED TO EDUCATION

FISCAL IMPLICATIONS:
None.

LOCAL FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
Shall take effect on July 1, 2012 and shall apply to school years
beginning with the 2012-13 school year.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 2357--C

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            January 19, 2011
                               ___________

Introduced by Sens. OPPENHEIMER, ADAMS, BONACIC, FUSCHILLO -- read twice
  and ordered printed, and when printed to be committed to the Committee
  on  Education -- committee discharged, bill amended, ordered reprinted
  as amended and recommitted to said committee -- committee  discharged,
  bill  amended,  ordered  reprinted  as amended and recommitted to said
  committee -- recommitted to the Committee on Education  in  accordance
  with  Senate  Rule  6,  sec.  8 -- committee discharged, bill amended,
  ordered reprinted as amended and recommitted to said committee

AN ACT to amend the  education  law,  in  relation  to  the  release  of
  personally identifiable student information by school districts

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The education law is amended by adding a new section 3212-b
to read as follows:
  S 3212-B. RELEASE OF PERSONALLY  IDENTIFIABLE  INFORMATION  BY  SCHOOL
DISTRICTS.    1.  FOR  THE  PURPOSES OF THIS SECTION THE FOLLOWING TERMS
SHALL HAVE THE FOLLOWING MEANINGS:
  (A) "STUDENT" SHALL MEAN AND INCLUDE ANY PERSON WITH RESPECT  TO  WHOM
AN  EDUCATIONAL  AGENCY  OR  INSTITUTION  MAINTAINS EDUCATION RECORDS OR
PERSONALLY IDENTIFIABLE INFORMATION, BUT DOES NOT INCLUDE A  PERSON  WHO
HAS NOT BEEN IN ATTENDANCE AT SUCH AGENCY OR INSTITUTION.
  (B)  THE  TERM  "SCHOOL"  MEANS  ANY PUBLIC SCHOOL; IN ANY CITY, UNION
FREE, COMMON OR  CENTRAL  SCHOOL  DISTRICT,  ANY  NON-PUBLIC  SCHOOL  OF
SECONDARY EDUCATION; AND ANY SCHOOL OF HIGHER EDUCATION.
  (C)  DISCLOSABLE  DIRECTORY INFORMATION (DDI) HEREAFTER REFERRED TO IN
THIS SECTION  AS  "DIRECTORY  INFORMATION",  MEANS  WITH  RESPECT  TO  A
STUDENT,  THE  STUDENT'S  NAME;  PHOTOGRAPH;  AGE; MAJOR FIELD OF STUDY;
GRADE  LEVEL;  ENROLLMENT  STATUS  (E.G.,  UNDERGRADUATE  OR   GRADUATE,
FULL-TIME OR PART-TIME); DATES OF ATTENDANCE; PARTICIPATION IN OFFICIAL-
LY  RECOGNIZED  ACTIVITIES  AND  SPORTS; WEIGHT AND HEIGHT OF MEMBERS OF

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07381-10-2

S. 2357--C                          2

ATHLETIC TEAMS; DEGREES, HONORS AND AWARDS RECEIVED; AND THE MOST RECENT
EDUCATIONAL AGENCY OR INSTITUTION ATTENDED.
  (D) "PERSONALLY IDENTIFIABLE STUDENT INFORMATION (PISI)" SHALL INCLUDE
DISCLOSABLE  DIRECTORY INFORMATION, AND A STUDENT'S OR PARENT'S ADDRESS,
TELEPHONE NUMBER, AND E-MAIL ADDRESS.
  2. (A) A SCHOOL MAY DISCLOSE DIRECTORY  INFORMATION  ABOUT  A  STUDENT
ONLY:
  (I)  IF  THE  DISCLOSURE  DOES  NOT INCLUDE ANY INFORMATION OTHER THAN
DISCLOSABLE DIRECTORY INFORMATION AS DEFINED IN THIS SECTION;
  (II) AFTER GIVING THE PARENT OF  THE  STUDENT  IN  ATTENDANCE  OR  THE
ELIGIBLE  STUDENT  IN ATTENDANCE AT THE SCHOOL NOTICE AND AN OPPORTUNITY
TO OPT-OUT OF THE DISCLOSURE IN ACCORDANCE  WITH  SUBDIVISION  THREE  OF
THIS SECTION; AND
  (III)  IF  THE  DISCLOSURE  IS TO A SCHOOL NEWSPAPER, LOCAL NEWSPAPER,
SCHOOL CLUB OR ORGANIZATION, SCHOOL YEARBOOK, HONOR ROLL OR OTHER RECOG-
NITION  LIST,  GRADUATION  PROGRAM,  SPORTS  RELATED  PUBLICATION  WHICH
PROVIDES SPECIFIC INFORMATION ABOUT PARTICULAR STUDENTS FOR THE PURPOSES
OF  A SPECIFIC SPORTS ACTIVITY OR FUNCTION, OR PARENT AND TEACHER ORGAN-
IZATION.
  (B) A SCHOOL MAY DISCLOSE PERSONALLY IDENTIFIABLE STUDENT  INFORMATION
ONLY  WITH  THE  AFFIRMATIVE  CONSENT  OF  THE  PARENT OF THE STUDENT IN
ATTENDANCE OR THE ELIGIBLE STUDENT IN ATTENDANCE IN ACCORDANCE WITH  THE
PROCEDURE PROVIDED IN SUBDIVISION THREE OF THIS SECTION IF:
  (I)  THE  DISCLOSURE  IS TO THE PARENT OF ANY STUDENT IN ATTENDANCE OR
ANY ELIGIBLE STUDENT IN ATTENDANCE AT THE SCHOOL; OR
  (II) THE DISCLOSURE IS TO A NON-PROFIT ORGANIZATION  THAT:  (A)  SEEKS
THE  INFORMATION  FOR  A SPECIFIC PURPOSE DETERMINED BY THE SCHOOL TO BE
BENEFICIAL TO THE STUDENT; (B) STATES IN WRITING THAT IT HAS NOT USED OR
DISCLOSED PERSONALLY IDENTIFIABLE STUDENT INFORMATION FROM ANY SCHOOL IN
A MANNER INCONSISTENT WITH THE TERMS OF DISCLOSURE WITHIN THE PAST  FIVE
YEARS;  AND  (C)  AGREES IN WRITING TO USE THE INFORMATION ONLY FOR THAT
PURPOSE AND TO RETURN OR DESTROY THE INFORMATION WHEN  THE  PURPOSE  HAS
BEEN  FULFILLED OR WITHIN ONE YEAR AFTER RECEIPT, WHICHEVER COMES FIRST;
AND
  (III) THE SCHOOL HAS NO REASON TO BELIEVE THAT THE RECIPIENT HAS  USED
OR DISCLOSED PERSONALLY IDENTIFIABLE STUDENT INFORMATION FROM ANY SCHOOL
IN  A  MANNER  INCONSISTENT  WITH THE TERMS OF THE DISCLOSURE WITHIN THE
PAST FIVE YEARS.
  (C) UNLESS OTHERWISE ALLOWED BY LAW, A SCHOOL MAY NOT, EVEN  WITH  THE
AFFIRMATIVE  CONSENT  OF  THE PARENT OF THE STUDENT IN ATTENDANCE OR THE
ELIGIBLE STUDENT IN ATTENDANCE, DISCLOSE PERSONALLY IDENTIFIABLE STUDENT
INFORMATION FOR A COMMERCIAL,  FOR-PROFIT  ACTIVITY  INCLUDING  BUT  NOT
LIMITED TO USE FOR:
  (I) MARKETING PRODUCTS OR SERVICES;
  (II)  SELLING  PERSONALLY  IDENTIFIABLE STUDENT INFORMATION FOR USE IN
MARKETING PRODUCTS OR SERVICES;
  (III) CREATING OR CORRECTING AN INDIVIDUAL OR HOUSEHOLD PROFILE;
  (IV) COMPILATION OF A STUDENT LIST;
  (V) SALE OF THE INFORMATION FOR ANY COMMERCIAL PURPOSE; OR
  (VI) ANY OTHER PURPOSE CONSIDERED BY THE SCHOOL  AS  LIKELY  TO  BE  A
COMMERCIAL, FOR-PROFIT ACTIVITY.
  (D) IN MAKING AN ALLOWABLE DISCLOSURE UNDER THIS SUBDIVISION, A SCHOOL
MAY  ONLY DISCLOSE THE MINIMUM AMOUNT OF INFORMATION NECESSARY TO ACCOM-
PLISH THE PURPOSE OF THE DISCLOSURE.
  3. WITHIN THE FIRST WEEK OF EACH SCHOOL  YEAR,  EACH  SCHOOL  DISTRICT
SHALL  ISSUE  A PUBLIC NOTICE, INCLUDE IN THE STUDENT HANDBOOK, AND SEND

S. 2357--C                          3

HOME WITH EVERY STUDENT, INFORMATION STIPULATING THE  DISCLOSURE  PROCE-
DURES  FOR DISCLOSABLE DIRECTORY INFORMATION AND PERSONALLY IDENTIFIABLE
STUDENT INFORMATION.
  (A)  THE  DISCLOSURE  INFORMATION  SHALL  CONSIST OF THE DEFINITION OF
DISCLOSABLE DIRECTORY INFORMATION AND  PERSONALLY  IDENTIFIABLE  STUDENT
INFORMATION AS SET FORTH IN THIS SECTION; AND SHALL ALSO INCLUDE:
  (I)  THE PROCEDURE FOR PROHIBITING THE SCHOOL FROM DISSEMINATING DISC-
LOSABLE DIRECTORY INFORMATION UNDER PARAGRAPH (A) OF SUBDIVISION TWO  OF
THIS  SECTION  AND  A  DESCRIPTION OF ANY DIRECTORY INFORMATION THAT THE
SCHOOL PROPOSES TO DISCLOSE DURING THE SCHOOL YEAR; AND
  (II) THE PROCEDURE FOR AUTHORIZING THE SCHOOL TO  DISCLOSE  PERSONALLY
IDENTIFIABLE  STUDENT INFORMATION UNDER PARAGRAPH (B) OF SUBDIVISION TWO
OF THIS SECTION AND A DESCRIPTION OF ANY PERSONALLY IDENTIFIABLE STUDENT
INFORMATION THAT THE SCHOOL PROPOSES TO DISCLOSE DURING THE SCHOOL YEAR.
  (B) (I) IF THE SCHOOL DOES NOT RECEIVE NOTICE FROM  THE  PARENT  OF  A
STUDENT  IN  ATTENDANCE  OR  THE  ELIGIBLE  STUDENT IN ATTENDANCE AT THE
SCHOOL PROHIBITING THE DISCLOSURE OF DIRECTORY INFORMATION WITHIN THIRTY
DAYS OF THE DISSEMINATION OF THE INFORMATION REQUIRED TO BE PROVIDED  IN
PARAGRAPH  (A) OF THIS SUBDIVISION, THE SCHOOL MAY DISSEMINATE DISCLOSA-
BLE DIRECTORY INFORMATION RELATING TO THE STUDENT PURSUANT TO  PARAGRAPH
(A) OF SUBDIVISION TWO OF THIS SECTION.
  (II)  IF  THE SCHOOL DOES RECEIVE CONSENT FROM THE PARENT OF A STUDENT
IN ATTENDANCE OR THE ELIGIBLE STUDENT IN ATTENDANCE  AT  THE  SCHOOL  TO
DISCLOSE PERSONALLY IDENTIFIABLE STUDENT INFORMATION UNDER PARAGRAPH (B)
OF   SUBDIVISION  TWO  OF  THIS  SECTION,  THE  SCHOOL  MAY  DISSEMINATE
PERSONALLY  IDENTIFIABLE  STUDENT  INFORMATION  AS  SET  FORTH  IN  THIS
SECTION.
  4.  NOTHING  IN  THIS  SECTION  SHALL  LIMIT THE ADMINISTRATIVE USE OF
PUBLIC SCHOOL RECORDS BY A PERSON ACTING  EXCLUSIVELY  IN  THE  PERSON'S
CAPACITY  AS  AN EMPLOYEE OF A BOARD OF EDUCATION OR OF THE STATE OR ANY
OF ITS POLITICAL SUBDIVISIONS, ANY COURT, OR THE FEDERAL GOVERNMENT.
  5. THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO  THE  RELEASE  OF
PERSONALLY  IDENTIFIABLE  STUDENT  INFORMATION  TO  THE  DEPARTMENT, THE
UNITED STATES MILITARY, OR ANY  INSTITUTION  OF  HIGHER  EDUCATION,  ANY
POLITICAL SUBDIVISION OR FEDERAL AGENCY THAT DEMONSTRATES AN APPROPRIATE
NEED  FOR  THE  INFORMATION  OR  A SCHOOL DISTRICT OR SCHOOL THAT DEMON-
STRATES AN APPROPRIATE NEED FOR THE INFORMATION.
  S 2. This act shall take effect July 1, 2012 and shall apply to school
years beginning with the 2012-2013 academic year.

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