data and the law

Are secret algorithms and mandated data collection violating basic human rights and existing law?  A list of each: data and law.

The data:

  • Secret data collecting and predictive algorithms happening to school children here.
  • Data badges, micro-credentials here.
  • Children being (mis)labeled in schools, how every state has an SLDS database and data dictionary of student personally identifiable information here.
  • FERPA is a data sharing law: the FERPA “secret” from a data expert and advisor to Ed-Fi and the US Dept of Ed,  on how to share data with anyone, without having to de-identify it here.
  • First in the nation, Colorado Education-Workforce-Credentialing $10 million pilot, with LinkedIn building tools to share data on a “massive scale” –and– a 327 page workforce blueprint to align SLDS databases and share data here.
  • The astonishing amount of information collected on children here and here.
  • Data insecurity: US Dept of Ed and it’s lack of security, lack of accountability and perceived lack of  integrity in protecting your children’s data here.
  • Suggestions on how to “Fix Ferpa”,  necessary  targets for legislation here and here.

 The laws:nuremberg square

Meet the Nuremberg Code:

The voluntary consent of the human subject is absolutely essential.” -The Nuremberg Code
The Nuremberg Code is a U.S. law that lists many criteria which must be met before conducting research on humans, including consent. In fact, the Nuremberg Code is the basis requires Internal Review Boards (IRBs) designated to approve, monitor, and review biomedical and behavioral research involving humans. In the case of studies involving the use of educational tests, there are specific provisions in the exemption to ensure that subjects cannot be identified or exposed to risks or liabilities. Generally, human research ethics guidelines require that decisions about exemption are made by an IRB representative, not by the investigators themselves.
Interestingly, some states, such as Colorado, are allegedly disbanding their IRB panels and would allow the investigators themselves, who are requesting students records and personally identifiable data, to use their own IRB panel to approve their own research. This poses a question of ethics and as you can see above, is not generally accepted.
Another important question: consent. Does any state ask the research subjects (children or their parents) for their approval,  and consent to online algorithms or sharing student personal information for research purposes, do they allow parents to see the data collected by algorithms, and do they allow alternatives to algorithms in school?

Meet the Interstate Compact Agreement:

In the United States of America, an interstate compact is an agreement between two or more states. Article I, Section 10 of the United States Constitution provides that “no state shall enter into an agreement or compact with another state without the consent of Congress.” Consent can be obtained in one of three ways. First, there can be a model compact and Congress can grant automatic approval for any state wishing to join it, such as the Driver License Compact. Second, states can submit a compact to Congress prior to entering into the compact. Third, states can agree to a compact then submit it to Congress for approval, which, if it does so, causes it to come into effect. Not all compacts between states require explicit Congressional approval – the Supreme Court ruled in Virginia v. Tennessee that only those agreements which would increase the power of states at the expense of the federal government required it.-wiki 

Did these cross-state data exchanging entities gain approval from Congress?                  (Click on the links in this non-exhaustive list to explore their function, their full title  and even more acronyms and links to student data.)

WICHE The Western Interstate Commission for Higher Education (WICHE) is a public, interstate agency established to promote and facilitate resource sharing, collaboration, and cooperative planning among the Western states. Read about their multi-state data exchange MLDE and WICHE involvement in changing FERPA.

SARA is a nationwide initiative of states.  Eleven WICHE states have joined SARA. Read about the evolution of SARA.

SHEEO  shares data with the US Dept of Labor.  Read their Ideal State Postsecondary Data System: 15 Essential Characteristics and Required Functionality, including an individual electronic record for each student, herePartners of SHEEO include the CCSSO (Council of Chief State School Officers), the College and Career Readiness Project, and the National Center for Educational Statistics, CEDS, WICHE among others.

SEED is similar to WICHE, allowing participating states to track, monitor, and share information for transfer students who cross state lines Here are documents explaining the data exchange. Slide 17 shows the data available.

DQC Data Quality Campaign launched and is instrumental in developing the SLDS, commonly tagged data standards, student-level data, transferring of data across states across states.

WDQI U.S. Dept of Labor Workforce Data Quality Initiative linking SLDS student-level data to US Dept of Labor, beginning in pre-school. Enable workforce data to be matched with education data to ultimately create longitudinal data systems with individual-level information beginning with pre-kindergarten through post-secondary schooling all the way through entry and sustained participation in the workforce and employment services system.

IMS Global  IMS is a non-profit, IMS Global is key to the data sharing and has partnered with the U.S. Dept of Defense/ U.S. Dept of Ed’s Learning Registry (in the video below) to deliver student data via online sources. See a list of IMS Global members here. IMS was also instrumental in creating common data standards (tags).  IMS just announced they have joined Ed-Fi, enabling basic student and teacher information to flow easily and securely among data systems and learning technology.

APIP  according to this 2013 press release, APIP helped create the common data tags (standards). They did this federal RttT money and with the help of PARCC and SBAC.   APIP is maintained by IMS Global Learning Consortium. IMS’s APIP Workgroup includes several state and testing industry members, including Measured Progress, Pearson, ETS, CTB-McGraw Hill, ACT, Pacific Metrics. Smarter Balanced and PARCC committed to interoperability in their RttTA applications. Both consortia participated in the creation of interoperable data standards: the Common Education Data Standards (CEDS). The Common Education Data Standards (CEDS) project is housed within the National Center for Education Statistics (NCES) and develops common data standards education data elements. Part of this project includes the development of the Assessment Interoperability Framework (AIF). AIF is a collaborative effort between the Race to the Top Assessment Consortia (PARCC, Smarter Balanced) and two leading education standards organizations  (SIF Association and IMS Global). One goal of AIF is to develop an architecture plan, detailing how system components and interoperability standards interact to support next generation assessments. SIF and APIP are two standards that will be part of the AIF architecture. If that was hard to follow, sometimes a picture is easier. Try this.

SLDS to SLDS : The Multi-state Technology Collaboration, MSTC, collaborations across states focused on data sharing interoperability. You can see the participating states here.  Per the 2015 Federal grant application:  “If proposing collaboration with other States, the response must also identify any legal or regulatory issues that may prevent there being a successful cross demonstrate that the States have agreed that the collaboration and data sharing may proceed.”  [page 11-12]

Additionally we know, since states’ student data bases maintain a longitudinal record of data, researchers from all around the country, mentioned in this US Department of Education report as businesses, power users of the SLDS data” often request students’ personal information for research purposes unknown to parents and students.

Federal Learning Registry–  a joint data gathering project between the US Dept. of Defense and US Dept of Education.   This video announces their launch, the need for industry vendors to partner and deliver data, and the fact there is  “a lot of money to be made”.  You can also read the report on data, technology, multi-state collaborations, commissioned by the U.S. Department of Education Office of Innovation and Improvement here.

National Student Database Prohibited

This U.S. law, 20 U.S. Code § 1015c -states that a national database of student information is prohibited. Diane Ravitch, professor and former Assistant Secretary of U.S. Education points out, and also two former Counsels of the U.S. Department of Education Talbert and Eitel point out, the U.S. Dept of Ed is prohibited from directing local education.

This 2013 letter by Diane Ravitch, questions why our U.S. Dept of Ed weakened privacy laws to allow data collection:

 “…privacy protections built into federal[FERPA]  law have been weakened by the U.S. Department of Education to allow third-parties to access confidential information about students.

The Electronic Privacy Information Center summarizes the chronology. It has filed a lawsuit and is fight the Department’s new policy, which will give the private sector access to confidential student data.

In December 2011, the U.S. Department of Education changed the regulations governing the release of student data to the private sector, without Congressional authorization to do so.”-Diane Ravitch, read full letter here

Please also review this letter sent to US Secretary of Ed Arne Duncan, in 2010,  from Congressman John Kline. stating by way of “backdoor”,  the U.S.Dept of Ed has created a national data base, via interoperable SLDS databases in each state.

Meet the U.S. Computer Matching Act 1988, amended 1990:

“The purpose of the independent verification requirement is to assure that the rights of individuals are not affected automatically by computers without human involvement and without taking reasonable steps to determine that the information relied upon is accurate, complete and timely.”

Many, including the Federal Trade Commission, are questioning use of hidden, data collecting algorithms.

Many, including the Federal Trade Commission, are asking for algorithmic transparency and questioning the use of these “black box” algorithms. Algorithms are embedded, hidden computer programs that collect constant reams of unknown data, to be used for unknown purposes, creating unknown profiles of how children learn, how children behave, sorting children targeting them for algorithmically deemed appropriate opportunities and experiences, while simultaneously excluding them from other opportunities.

Meet FIPs:

The Code of Fair Information Practices (FIPs) was the central contribution of the HEW (Health, Education, Welfare) Advisory Committee on Automated Data Systems. The Advisory Committee was established in 1972, and the report released in July. The citation for the report is as follows: U.S. Dep’t. of Health, Education and Welfare, Secretary’s Advisory Committee on Automated Personal Data Systems, Records, computers, and the Rights of Citizens viii (1973).

The Code of Fair Information Practices is based on five principles:

  1. There must be no personal data record-keeping systems whose very existence is secret.
  2. There must be a way for a person to find out what information about the person is in a record and how it is used.
  3. There must be a way for a person to prevent information about the person that was obtained for one purpose from being used or made available for other purposes without the person’s consent.
  4. There must be a way for a person to correct or amend a record of identifiable information about the person.
  5. Any organization creating, maintaining, using, or disseminating records of identifiable personal data must assure the reliability of the data for their intended use and must take precautions to prevent misuses of the data.

Meet the children and their parents:

Parents have rights to protect their children from danger and from harm.

Parents don’t let strangers come into their home and take their children. That is called kidnapping.

Parents tell children don’t talk to strangers, don’t go anywhere with strangers, don’t tell strangers your name or address.   That’s called Stranger Danger. 

And this is Privacy: the state or condition of being free from being observed or disturbed by other people.




Who will expose it, who will stop it? Maybe someone who has a voice and understands privacy? Maybe Edward Snowden will speak out about the harm to children? Caleb Bonham? Maybe the ACLU? Will it take someone like the incredibly witty and brutally honest John Oliver

Parents and children need your voice, what do you all say? 

hack back to school



Cheri Kiesecker

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