BILL ANALYSIS                                                                                                                                                                                                    Ó





                           SENATE COMMITTEE ON EDUCATION
                                  Carol Liu, Chair
                              2013-14 Regular Session
                                          

          BILL NO:       SB 1177
          AUTHOR:        Steinberg
          INTRODUCED:    February 20, 2014
          FISCAL COMM:   No             HEARING DATE:  March 26, 2014
          URGENCY:       No             CONSULTANT:Lenin Del Castillo

           NOTE  :  This bill has been referred to the Committees on  
                    Education and 
          Judiciary.  A "do pass" motion should include referral to the  
                    Committee 
          on Judiciary.  

           SUBJECT  :  Student Online Personal Information Protection Act.
          
           SUMMARY   

          This bill prohibits K-12 online educational sites, services,  
          and applications from compiling, sharing, or disclosing student  
          personal information and from facilitating, marketing, or  
          advertising to K-12 students.

           BACKGROUND  

          Existing law provides that, among other rights, all people have  
          an inalienable right to pursue and obtain privacy. (California  
          Constitution, Article I, Section 1)

          Existing law also allows a person to bring an action in tort  
          for an invasion of privacy and provides that in order to state  
          a claim for violation of the constitutional right to privacy,  
          the following three elements must be established:

        1)Legally protected privacy interest;

        2)Reasonable expectation of privacy in the circumstances; and

        3)Conduct by the defendant that constitutes a serious invasion of  
          privacy. 
             (Hill v. National Collegiate Athletic Association (1994) 7  
          Cal.4th 1)







                                                                   SB 1177
                                                                    Page 2


          Existing law provides that there is no reasonable expectation  
          of privacy in information posted on an Internet Web site.  
          (Moreno v. Hanford Sentinel (2009) 172 Cal.App.4th 1125)   
          Additionally, federal law requires an operator on an Internet  
          Web site or online service that has actual knowledge that it is  
          collecting personal information from a child to provide notice  
          of what information is being collected and how that information  
          is being used, and to give the parents of the child the  
          opportunity to refuse to permit the operator's further  
          collection of information from the child. (15 United States  
          Code, 6502)

          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.  (Business & Professions  
          Code Section 22575)

          Existing federal law makes it unlawful for an operator of a Web  
          site or online service directed to children under the age of 13  
          to collect personal information from a child, including a  
          child's first and last name, home or other physical address  
          including street name and name of a city or town, e-mail  
          address, telephone number, or Social Security number. (15  
          U.S.C. Section 6501 et. seq.)

          The Family Educational Rights and Privacy Act (FERPA) (20  
          U.S.C. Section 1232g; 34 CFR Part 99) protects 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, FERPA allows schools to disclose those records,  
          without consent, to the following parties or under the  
          following conditions 
          (34 CFR Section 99.31):

                 School officials with legitimate educational interest;
                 Other schools to which a student is transferring;
                 Specified officials for audit or evaluation purposes;
                 Appropriate parties in connection with financial aid to  
               a student;
                 Organizations conducting certain studies for or on  






                                                                   SB 1177
                                                                    Page 3


               behalf of the school;
                 Accrediting organizations;
                 To comply with a judicial order or lawfully issued  
               subpoena; 
                 Appropriate officials in cases of health and safety  
               emergencies; and
                 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  
          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 FERPA.

           ANALYSIS  

          This bill: 

             1)   Requires an operator of an Internet Web site, online  
               service, online application, or mobile application used  
               for and designed and marketed for K-12 school purposes to  
               comply with all of the following:

             a)   Shall not use, share, disclose, or compile personal  
               information 
                       about a K-12 student for any purpose other than  
               the K-12 school 
                       purpose and for maintaining the integrity of the  
               site, service, or 
                    application.

             b)   Shall not use, share, disclose, or compile a student's  
               personal 
                       information for any commercial purpose, including,  
               but not limited 
                       to, advertising or profiling.

             c)   Shall not allow, facilitate, or aid in the marketing or  
               advertising of a 
                       product or service to a K-12 student on the site,  
               service, or 
                       application.






                                                                   SB 1177
                                                                    Page 4



             d)   Shall take all reasonable steps to protect the data at  
               rest and in 
                       motion in a manner that meets or exceeds  
               commercial best 
                       practices. An operator shall be deemed to be in  
               compliance with 
                       this paragraph if the operator ensures valid  
               encryption processes 
                       for data at rest and for data in motion, as  
               specified.

             2)   Requires an operator of an Internet Web site, online  
               service, online application, or mobile application with  
               actual knowledge that the site, service, or application is  
               used for or designed and marketed for K-12 school purposes  
               to provide a notice to the operator of a secondary site,  
               service, or application that is accessible through the  
               noticing operator's site, service, or application that the  
               secondary site, service, or application is used for K-12  
               school purposes.

             3)   Requires an operator to comply with this section upon  
               either receiving notice that the site, service, or  
               application is used for K-12 school purposes or if the  
               operator otherwise has actual knowledge that the site,  
               service, or application is used for K-12 school purposes.

             4)   Requires an operator that fails to provide the notice  
               to be liable for the secondary site, service, or  
               application's compliance with this section, unless that  
               secondary site, service, or application had actual  
               knowledge it was being used for K-12 purposes and was  
               designed and marketed for K-12 school purposes.

             5)   Requires an operator to delete a student's personal  
               information if any of the following occurs:

             a)   The site, service, or application is no longer used for  
               the original 
                    K-12 school purpose.

             b)   The student requests deletion, unless it is being used  
               at the 
                       direction of a school or district for legitimate  






                                                                   SB 1177
                                                                    Page 5


               educational purposes 
                       and is under the control of the school or  
               district.

             c)   The student ceases to be a student at the institution  
               and the 
                       operator becomes aware the student is no longer a  
               student, unless 
                       it is being used at the direction of a school or  
               district for legitimate 
                    educational purposes and is under the control of the  
               school or 
                              district.

             6)   Provides that an operator may disclose personal  
               information of a student if other provisions of federal or  
               state law require the operator to disclose the  
               information, and the operator complies.

             7)   Provides that an "online service" includes cloud  
               computing services.

             8)   Provides that an operator of an Internet Web site,  
               online service, online application, or mobile application  
               used for and designed and marketed for K-12 school  
               purposes may disclose personal information of a student  
               for legitimate research purposes as required by state and  
               federal law and subject to the restrictions under state  
               and federal law.

             9)   Defines "personal information" as any information or  
               materials in any media or format created or provided by a  
               student or the student's parent or legal guardian, as  
               specified.

             10)  Provides that these provisions shall not be construed  
               to limit the authority of a law enforcement agency to  
               obtain any content or information from an operator as  
               authorized by law or pursuant to an order of a court of  
               competent jurisdiction. 

             11)  Provides that it is not the intent of the Legislature  
               for this chapter to apply to general audience Internet Web  
               sites.







                                                                   SB 1177
                                                                    Page 6


             12)  Provides that the provisions of the bill are severable,  
               as specified.

           STAFF COMMENTS  

         1)Author's statement  :  "The Student Online Personal Information  
          Protection 
             Act ("SOPIPA") closes loopholes that can be exploited by  
          Internet 
             companies for profit through collecting and sharing  
          students' personal 
             information obtained through online services marketed for  
          school 
             purposes.  

               These companies are operating with zero restrictions,  
               except for the ones that they themselves deem unilaterally  
               appropriate. That is unacceptable. Kids are in the  
               classroom to learn and we value the security of their  
               personal information above private profit.

               Many companies provide online services to aide classroom  
               teaching but they require students to create accounts that  
               capture contact data and personal academic information  
               such as grades, disciplinary history, and chat records. In  
               some instances, companies are mining data from  
               schoolchildren beyond the needs of the classroom. Some  
               Apps marketed to teachers and kids could track a child's  
               physical location. 

               In many cases, the only agreement about how a student's  
               personal information is processed is the privacy policy  
               drafted by the online company. Some privacy policies state  
               that they are "subject to change" unilaterally and at any  
               time. Others include provisions which affirmatively state  
               that the online company has no liability if they mishandle  
               personal information. 

               Current federal and state law puts the onus only on  
               schools and school districts to protect student personal  
               information, not online companies. The type of personal  
               information that these companies may gather is broad and  
               highly prized by online advertisers and marketers.

               SOPIPA would prohibit the commercial use of student  






                                                                   SB 1177
                                                                    Page 7


               personal information for any secondary purposes including  
               advertising, require online companies to properly encrypt  
               student data, and require deletion of student personal  
               information in certain instances.

               We must get ahead of this problem before it's too late. I  
               intend to put safeguards around student personal  
               information while allowing the industry to continue  
               innovating."

         2)New era of digital technology in schools  .  Recent advances in  
          technology have 
               changed the landscape of education in schools and have  
               resulted in the expansion of student data.  School  
               districts are increasingly integrating the use of  
               computers and tablets in the classroom to instantly  
               deliver personalized content, employ virtual forums for  
               interacting with other students and teachers, and utilize  
               other interactive technologies to enhance student  
               learning.  These technologies, which may be provided  
               directly by school districts and through the use of  
               private contractors and subcontractors, have the potential  
               to transform the classroom and learning processes.  Online  
               forums are used to assist teachers with sharing lesson  
               plans and web-based applications help teachers with  
               customized learning experiences for individual students.   
               With access to personal student level education records,  
               these new technologies raise questions concerning the  
               security of this information.  To illustrate, the United  
               States Department of Education established the Privacy  
               Technical Assistance Center (PTAC) as a resource for  
               education stakeholders to learn about data privacy,  
               confidentiality, and security practices related to  
               student-level longitudinal data systems and other uses of  
               student data.  The PTAC recently released new guidance to  
               help schools and educators understand the major laws and  
               best practices protecting student privacy while using  
               online educational services.  This guidance summarized the  
               requirements of the Family Educational Rights and Privacy  
               Act (FERPA) and the Protection of Pupil Rights Amendment  
               (PPRA) that relate to these educational services, and  
               urged school districts to go beyond compliance to follow  
               best practices for outsourcing school functions using  
               online educational services, including computer software,  
               mobile applications, and web-based tools.  The author's  






                                                                   SB 1177
                                                                    Page 8


               office indicates that this guidance lends support for why  
               the bill is necessary to place restrictions on the online  
               sites, services, and applications from using student  
               personal information for secondary non-educational  
               purposes and from serving up advertisements while students  
               work online.



         3)Smarter Balanced Assessments  .  California joined the Smarter  
          Balanced 
               Assessment Consortium (SBAC) as a governing state in 2011  
               for the purpose of developing assessments that are aligned  
               to the common core standards.  California committed to  
               administering the SBAC assessments to pupils beginning in  
               the 2014-15 school year.  SBAC will develop an assessment  
               system with major deliverables that include online  
               computer adaptive summative assessments that give a  
               snapshot of student performance without a "one size fits  
               all approach" and an online tailored reporting system that  
               provides educators access to information about students'  
               progress toward college and career readiness as well as  
               students' specific strengths and weaknesses along the way.  
                The State Department of Education indicates that it does  
               not believe the bill's provisions will impact the SBAC  
               assessments.

         4)Definition of K-12 school purposes  ?  As the bill moves forward,  
          the author may 
               wish to address several issues worth consideration.  While  
               the bill is intended to prevent the use of student  
               information for secondary purposes such as advertising and  
               marketing, it does not define "K-12 school purposes."   
               Therefore the bill could be interpreted to have broad  
               application and raise some level of ambiguity.  For  
               example, would the provisions of the bill apply to social  
               media or general purpose Internet sites that may have some  
               K-12 instructional nexus but are not exclusively used for  
               K-12 purposes?  Further, if disputes arise, who is the  
               enforcement agency that would rule on such matters?   
               Without a clear definition of "K-12 school purposes", the  
               bill's provisions could potentially impact general  
               audience Internet sites.

         5)Related and prior legislation  .  This bill is similar to Senate  






                                                                   SB 1177
                                                                    Page 9


          Bill 568 (Steinberg),
               Chapter 336, Statutes of 2013, which requires operators of  
               online sites, services, and applications to allow minors  
               to remove what they post and also prohibits these  
               operators from serving up advertisements to minors for  
               products and services minors cannot legally purchase in  
               California, such as alcohol, tobacco, and firearms.

           SUPPORT
           
          Common Sense Media
          Klaas Kids Foundation
          Privacy Rights Clearinghouse
          Services Employees International Union

           OPPOSITION
           
          None on file.