BILL ANALYSIS Ó
AB 2097
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Date of Hearing: April 19, 2016
ASSEMBLY COMMITTEE ON PRIVACY AND CONSUMER PROTECTION
Ed Chau, Chair
AB 2097
(Melendez, Gatto, Gonzalez) - As Amended March 18, 2016
SUBJECT: Student records: Social Security numbers
SUMMARY: Prohibits the collection of Social Security numbers
(SSNs) of special needs student by the California Department of
Education (CDE). Specifically, this bill:
1)Makes finding and declarations regarding the importance of
student data privacy and the misuse of SSNs by criminals
perpetrating identity thefts.
2)Prohibits school districts from collecting or soliciting
complete SSNs or the last four digits of SSNs from students or
their parents or guardians unless otherwise required to do so
by state or federal law.
3)Authorizes CDE to prohibit the collection and solicitation of
other personally identifiable information as recommended by
the Superintendent of Public Instruction (SPI) and approved by
the State Board of Education (SBE).
4)Repeals the authority of the SPI to collect and use SSNs of
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special education students as student identification numbers.
5)Requires the SPI, commencing in 2017-18, and phased in over a
two-year period, to assign student identification numbers to
individuals with exceptional needs for the purposes of
evaluating special education programs and related services.
EXISTING LAW:
1)Protects, under the Federal Educational Rights and Privacy Act
(FERPA), the confidentiality of educational records (and
personally identifiable information contained therein) by
prohibiting the funding of schools that permit the release of
those records. (20 United States Code Sec. 1232g(b)(1))
2)Requires the SPI to evaluate the performance of special
education programs throughout the state and report on that
performance to the SBE, the Legislature and the Governor.
(Education Code (EC) Sections 56602)
3)Authorizes the SPI, in order to assist with evaluating the
effectiveness of special education programs, including
transition and work experience programs, to collect and
utilize SSNs of individuals with exceptional needs as student
identification numbers. (EC 56601)
4)Prohibits the SPI from disclosing personally identifiable,
individual student records to any person, institution, agency,
or organization except as provided by law. (EC 56601)
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5)Protects the confidentiality SSNs by restricting how state and
local agencies, and businesses, may use SSNs. (Civil Code
Section 1798.85 et seq.)
FISCAL EFFECT: Unknown
COMMENTS:
1)Purpose of this bill . This bill is intended to protect the
personal privacy of special needs students and prevent
identity theft by requiring CDE to phase out the collection
and use of the SSNs of special needs students. This measure
is author-sponsored.
2)Author's statement . According to the author, "Our school
districts are collecting personal information about our
children that is neither legally required nor necessary for
their education. With identity theft at an all-time high, our
focus should be on protecting our students, not exposing their
personal information unnecessarily."
3)California SSN confidentiality law . More than a decade ago,
the Legislature passed laws in 2001, 2002 and 2003 to protect
the confidentiality of SSNs. The impetus behind these laws is
that criminals use SSNs to perpetrate identity theft crimes
that can leave victims with a morass of unpaid credit cards,
defaulted loans, and ruined credit. In the years following
passage of those laws, most state and local agencies, public
and private colleges, banks, and health plans have stopped
using SSNs as identification numbers.
4)FERPA . The federal Family Educational Rights and Privacy Act
(FERPA) and state law protect the information contained in
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student records from public disclosure. However, these laws
permit education agencies, including CDE, to collect and
retain personally identifiable information on students,
including SSNs. While education agencies are prohibited from
disclosing SSNs and other personal information without the
prior written consent of the parent or guardian, there are
exceptions to this confidentiality rule.
For example, personal information, including SSNs, may be
disclosed without parental consent in order to comply with a
judicial order or lawfully issued subpoena. In these cases,
the educational agency may disclose the information if it
makes a reasonable effort to notify the parent or eligible
student of the order or subpoena in advance of compliance, so
that the parent or eligible student may seek protective
action.
5)The Morgan Hill case . The authors introduced this bill in
response to the case of Morgan Hill Concerned Parents
Association and Concerned Parents Association vs. California
Department of Education, in which the plaintiffs allege CDE is
failing to ensure that special education students are
receiving the services to which they are entitled. As part of
the discovery process, the plaintiffs have sought access to
the records, including SSNs, of approximately 10 million
special education students. The records are contained in the
California Longitudinal Student Achievement Data System
(CALPADS).
On May 5, 2014 the court approved a "discovery protective
order" and subsequently approved an "E-discovery Protocol,"
which identifies and describes CDE databases that may contain
discoverable material and discusses methods by which discovery
can proceed while protecting personal identifying information.
The E-discovery Protocol identified two options for discovery
of data. Option 1 was the transfer of data in CALPADS if and
when the plaintiffs establish a secure environment approved by
a Special Master. In Option 2, CDE would retain the data but
would facilitate the running of searches to meet the
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plaintiffs' discovery needs.
This was widely reported in the media as a court-ordered
release of data and resulted in an outcry among parents who
were concerned about the security of their children's
information and the possibility of identity theft. In the
midst of this, CDE posted a FERPA notice on its website that
included an "Objection to Disclosure of Student Information
and Records" form for parents to fill out and send to the
court. After being inundated with the forms, the judge in the
Morgan Hill case held a special status hearing on February 29,
2016, to discuss the public posting of the FERPA notice, the
public's response, and the implications for discovery.
That hearing was followed by a court order on March 1, 2016,
in which the court affirmed the rights of parents to be
notified but ruled that parental consent is not required for
the disclosure of student records. In addition, the court
eliminated Option 1 and directed the Special Master to proceed
with Option 2 and to meet and confer with the parties to
recommend further modifications to the E-discovery Protocol.
CDE has indicated to the Committee that it has begun the
process of phasing out the use of SSNs and that it can comply
with the timeline required by this bill.
6)Phasing out CDE's use of SSNs as student identifiers . CDE
currently uses SSNs as identifiers for special education
students but not for regular education students under a
specific authorization in the Education Code permitting the
use of SSNs as an identifier for special education students.
This bill requires CDE to phase out the use of SSNs as
identifiers for special education students over a two-year
period from 2017-2018, and to instead assign a unique student
identification number to each special education student in the
state.
7)Technical amendment . The following technical amendment is
needed to correct a drafting error:
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On page 2, line 12, after "school district" insert ",
county office of education, or charter school"
8)Double-referral . This bill was double-referred to the
Assembly Education Committee where it was heard on April 13,
2016, and passed out7-0 on consent.
REGISTERED SUPPORT / OPPOSITION:
Support
California State PTA
California Teachers Association
Opposition
None on file.
Analysis Prepared by:Jennie Bretschneider / P. & C.P. / (916)
319-2200
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