BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1584|
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THIRD READING
Bill No: AB 1584
Author: Buchanan (D), et al.
Amended: 7/1/14 in Senate
Vote: 21
SENATE EDUCATION COMMITTEE : 7-0, 6/11/14
AYES: Liu, Wyland, Block, Correa, Hancock, Huff, Monning
SENATE JUDICIARY COMMITTEE : 7-0, 6/24/14
AYES: Jackson, Anderson, Corbett, Lara, Leno, Monning, Vidak
ASSEMBLY FLOOR : 75-0, 5/5/14 (Consent) - See last page for vote
SUBJECT : Pupil records: third party contracts and digital
storage services
SOURCE : Author
DIGEST : This bill authorizes a local educational agency (LEA)
to enter into a contract with a third party to provide services
for the digital storage, management, and retrieval of pupil
records, provided the contract includes specific provisions
about the use, ownership, and control of the pupil records, as
specified.
ANALYSIS : Existing law prohibits a school district from
permitting access to student records to any person without
written parental consent or pursuant to a judicial order except
as set forth in the federal Family Educational Rights and
Privacy Act (FERPA). Access to those particular records
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relevant to the legitimate educational interests of the
requester shall be permitted to the following requesters:
1. School officials, employees of the district, and members of
a school attendance review board.
2. Officials and employees of other public schools where the
pupil intends to or is enrolled.
3. The Controller General of the U. S., the U. S. Secretary of
Education, state and local educational authorities, or the U.
S. Department of Education's Office of Civil Rights, if the
information is necessary to audit or evaluate a federally
funded program.
4. Other state and local officials if the information is
required to be reported pursuant to state law adopted before
November 19, 1974.
5. Parents of a pupil 18 years of age or older if the pupil is
a dependent.
6. A pupil who is 16 years of age or older or who has completed
10th grade and a pupil who is 14 years of age or older who is
a homeless or unaccompanied youth.
7. A district attorney conducting a truancy mediation program
or investigating a violation of compulsory attendance laws.
8. A probation officer, district attorney, or counsel of record
for a minor for purposes of conducting a criminal
investigation or an investigation in regards to declaring a
person a ward of the court or involving a violation of a
condition of probation.
9. A judge or probation officer in relation to a truancy
mediation program.
10.A county placing agency.
11.A representative of a child welfare agency.
12.Appropriate persons in connection with a health or safety
emergency.
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13.Agencies in connection with the application of a pupil for
financial aid.
14.Accrediting associations.
15.A contractor or consultant with a legitimate educational
interest who has a formal written agreement or contract with
the school district regarding the provision of outsourced
institutional services or functions.
Existing law requires an operator of a commercial Web site or
online service that collects personally identifiable information
through the Internet about individual consumers residing in
California who use or visit its Web site to conspicuously post
its privacy policy.
The federal FERPA is intended to protect the privacy of student
education records. It applies to all schools that receive funds
under an applicable program of the U.S. Department of Education.
Generally, schools must have written permission from the parent
or eligible student in order to release any information from a
student's education record. However, federal FERPA allows
schools to disclose those records, without consent, to the
following parties or under the following conditions:
1. School officials with legitimate educational interest.
2. Other schools to which a student is transferring.
3. Specified officials for audit or evaluation purposes.
4. Appropriate parties in connection with financial aid to a
student.
5. Organizations conducting certain studies for or on behalf of
the school.
6. Accrediting organizations.
7. To comply with a judicial order or lawfully issued subpoena.
8. Appropriate officials in cases of health and safety
emergencies.
9. State and local authorities, within a juvenile justice
system, pursuant to specific state law.
Schools may disclose, without consent, "directory" information
such as a student's name, address, telephone number, and date
and place of birth. However, schools must tell parents and
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eligible students about directory information and allow them a
reasonable amount of time to request that the school not
disclose such information. Schools must also notify parents and
eligible students annually of their rights under federal FERPA.
This bill:
1. Authorizes a LEA to enter into a contract with a third party
for either or both of the following purposes:
A. To provide services, including cloud-based services,
for the digital storage, management, and retrieval of
pupil records.
B. To provide digital educational software that
authorizes a third party provider of digital educational
software to access and acquire pupil records.
1. Requires an LEA that enters into a contract with a third
party to ensure the contract contains all of the following:
A. A statement that pupil records continue to be the
property of and under the control of the LEA, as
specified.
B. A description of the means by which pupils may retain
possession and control of their own pupil-generated
content, if any.
C. A prohibition against the third party using any
information in the pupil record for any purpose other than
for the requirements of the contract.
D. A description of the procedures by which a parent,
legal guardian, or eligible pupil may review the pupil's
records and correct erroneous information.
E. A description of the actions the third party will
take, including the designation and training of
responsible individuals, to ensure the security and
confidentiality of pupil records. Compliance with this
requirement shall not, in itself, absolve the third party
of liability in the event of an unauthorized disclosure of
pupil records.
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F. A description of the procedures for notifying the
affected parent, legal guardian, and eligible pupil in the
event of an unauthorized disclosure of pupil's records.
G. A certification that a pupil's records shall not be
retained or available to the third party upon completion
of the terms of the contract and a description of how that
certification will be enforced.
H. A description of how the LEA and the third party will
jointly ensure compliance with the federal FERPA and the
Children's Online Privacy Protection Act for all pupils,
including pupils who are more than 13 years of age.
2. Provides that in addition to any other penalties, a contract
that fails to comply with the requirements, as specified,
shall be rendered void if, upon notice and a reasonable
opportunity to cure, the noncompliant party fails to come
into immediate compliance and cure any defect. Written
notice of noncompliance may be provided by any party or
intended beneficiary of the contract. All parties subject to
a contract voided under this bill shall immediately return
all pupil records in their possession to the LEA.
3. States, for the purposes of this bill, the following terms
have the following meanings:
A. "Deidentified information" means information that
cannot be used to identify an individual pupil.
B. "Eligible pupil" means a pupil who has reached 18
years of age.
C. "Local educational agency" includes school districts,
county offices of education, and charter schools.
D. "Pupil-generated content" means materials created by a
pupil, including, but not limited to, essays, research
reports, portfolios, creative writing, music or other
audio files, and photographs.
1. Defines pupil records as any information directly related to
a pupil that is maintained by the LEA or any information
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acquired directly from the pupil through the use of
instructional software of applications assigned to the pupil
by a teacher or other employees of the LEA.
2. Provides that "pupil records" does not mean any of the
following:
A. Deidentified information, including aggregated
deidentified information, used by the third party to
improve educational products for adaptive learning
purposes and for customizing pupil learning.
B. Deidentified information, including aggregated
deidentified information, used to demonstrate the
effectiveness of the operator's products in the marketing
of those products.
C. Deidentified information, including aggregated
deidentified information, used for the development and
improvement of educational sites, services, or
applications.
1. Defines third party as a provider of digital educational
software or services, including cloud-based services, for the
digital storage, management, and retrieval of pupil records.
2. Provides that if the provisions of this bill are in conflict
with the terms of a contract in effect before January 1,
2015, the provisions of this bill shall not apply to the LEA
or the third party subject to that agreement until the
expiration, amendment, or renewal of the agreement.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local:
No
SUPPORT : (Verified 7/1/14)
Association of California School Administrators
California State PTA
Common Sense Media
OPPOSITION : (Verified 7/1/14)
Internet Association
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Technology Association of America
ARGUMENTS IN SUPPORT : According to the author's office, the
growing use of online and cloud-based services for providing
instructional software and assessment and for maintaining
student records has put student privacy at risk. There are
loopholes in current law that permit the disclosure of
confidential student records to private vendors without parental
knowledge or consent. The protections afforded by existing
state and federal law have not kept pace with the use of
cloud-based and online services by private, for-profit companies
to "data mine" student records. The author's office indicates
that private companies are currently acquiring access to student
records with little oversight to ensure the confidentiality of
those records. This bill is intended to strengthen protections
against the misuse or improper disclosure of student records by
requiring contracts entered into between a K-12 education agency
and a third party provider to contain specified, privacy-related
provisions.
ARGUMENTS IN OPPOSITION : Technology Association of America
states:
AB 1584 creates a new definition of "pupil records" into the
California Education Code which will create confusion for
school districts and third parties. The new definition
conflicts with the current definition of "pupil records"
contained in the California Code Section 49061(b) and
unnecessarily expands the "pupil records" definition far
beyond what is in current law and practice.
Furthermore, the federal Children's Online Privacy Protection
Act (COPPA) applies to websites or online services that
collect or maintains personal information from children under
the age of 13. AB 1584 directly conflicts with COPPA by
expanding this provision to students who are over the age of
13. The reference to include students who are over 13 years
of age should be eliminated from the bill.
The security and privacy of student data are both of paramount
importance to our industry. Parents, teachers, and
administrators need the confidence that student data will be
adequately protected and will not be shared for unauthorized
purposes. We support strengthening laws and regulations to
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inspire that confidence, as long as they don't impede on a
schools' ability to deliver first-class instruction to all
students.
ASSEMBLY FLOOR : 75-0, 5/5/14
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Bigelow, Bloom,
Bocanegra, Bonilla, Bonta, Bradford, Brown, Buchanan, Ian
Calderon, Campos, Chau, Chávez, Chesbro, Conway, Cooley,
Dababneh, Dahle, Daly, Dickinson, Donnelly, Eggman, Fong, Fox,
Frazier, Beth Gaines, Garcia, Gatto, Gomez, Gonzalez, Gordon,
Gorell, Gray, Grove, Hagman, Harkey, Roger Hernández, Holden,
Jones, Jones-Sawyer, Levine, Linder, Lowenthal, Maienschein,
Medina, Mullin, Muratsuchi, Nazarian, Nestande, Olsen, Pan,
Patterson, Perea, V. Manuel Pérez, Quirk, Quirk-Silva, Rendon,
Ridley-Thomas, Rodriguez, Salas, Skinner, Stone, Ting, Wagner,
Waldron, Weber, Wieckowski, Wilk, Williams, Yamada, John A.
Pérez
NO VOTE RECORDED: Hall, Logue, Mansoor, Melendez, Vacancy
PQ:k 7/2/14 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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