SF 2219

2nd Engrossment - 89th Legislature (2015 - 2016) Posted on 04/04/2016 08:41am

A bill for an act
relating to privacy; establishing student user privacy in education rights; requiring
online educational services to comply with security and privacy standards;
prohibiting use of student information for targeted marketing or creation of student
profiles; proposing coding for new law in Minnesota Statutes, chapter 125B.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

new text begin [125B.27] STUDENT-USER PRIVACY IN EDUCATION RIGHTS.
new text end

new text begin Subdivision 1. new text end

new text begin Definitions. new text end

new text begin (a) The definitions in this subdivision and section 13.32,
subdivision 1, apply to this section.
new text end

new text begin (b) "Online educational service" means a Web site, online service or application, or
mobile application that a student or the student's parent or legal guardian can access via
the Internet for school purposes. Online educational service includes a cloud computing
service.
new text end

new text begin (c) "Operator" means, to the extent it is operating in this capacity, a person who
operates an online educational service with actual knowledge that it is used primarily for
school purposes and was designed and marketed for these purposes. Operator includes
a vendor.
new text end

new text begin (d) "Protected information" means materials or information that is linked to
personally identifiable information or materials, in any media or format that is not publicly
available; and
new text end

new text begin (1) is created or provided by a student or the student's parent or legal guardian to an
operator in the course of the use of the operator's site, service, or application for school
purposes;
new text end

new text begin (2) is created or provided by an employee or agent of the school to an operator in the
course of the use of the operator's site, service, or application for school purposes; or
new text end

new text begin (3) is gathered by an operator through the operation of an online educational
service and personally identifies a student, including, but not limited to, information
in the student's educational record or e-mail, first and last name, home address,
telephone number, e-mail address, or other information that allows physical or online
contact, discipline records, test results, special education data, juvenile records, grades,
evaluations, criminal records, health records, Social Security number, biometric
information, disabilities, socioeconomic information, food purchases, political affiliations,
religious information, text messages, documents, student identifiers, search activity,
photos, voice recordings, or geolocation information.
new text end

new text begin (e) "School purposes" means purposes that (1) are directed by or customarily take
place at the direction of the school, teacher, or school district or aid in the administration
of school activities, including instruction in the classroom or at home, administrative
activities, and collaboration between students, school personnel, or parents or legal
guardians, or (2) are for the use and benefit of the school.
new text end

new text begin (f) "Student" means a student in prekindergarten through grade 12.
new text end

new text begin (g) "Vendor" means a person who enters into a contract with a school to provide an
online educational service.
new text end

new text begin (h) "Targeted advertising" means presenting advertisements to a student where
the advertisement is selected based on information obtained or inferred over time from
that student's online behavior, usage of applications, or covered information. It does not
include advertising to a student at an online location based upon that student's current
visit to that location, or in response to that student's request for information or feedback,
without the retention of that student's online activities or requests over time for the
purpose of targeting subsequent ads.
new text end

new text begin Subd. 2. new text end

new text begin Prohibited activities; targeted advertising; creation of student profiles;
sale or unauthorized disclosure of information. new text end

new text begin (a) An operator must not engage in
any of the following activities:
new text end

new text begin (1)(i) targeted advertising on the operator's online educational service; or
new text end

new text begin (ii) targeted advertising on any other site, service, or application when the targeting
of the advertising is based upon information, including protected information and unique
identifiers, that the operator has acquired or created because of the use of that operator's
online educational service;
new text end

new text begin (2) gather, use, or share information, including persistent unique identifiers, acquired
or created by the operator's online educational service, to create a profile about a student,
except in furtherance of school purposes. "Create a profile" does not include the collection
and retention of account information that remains under the control of the student, the
student's parent or guardian, or kindergarten through grade 12 school;
new text end

new text begin (3) sell a student's information, including protected information. This prohibition
does not apply to the purchase, merger, or other type of acquisition of an operator by
another person, provided that the operator or successor continues to be subject to this
section with respect to previously acquired student information or to national assessment
providers if the provider secures the express written consent of the parent or student, given
in response to clear and conspicuous notice, solely to provide access to employment,
educational scholarships or financial aid, or postsecondary educational opportunities; or
new text end

new text begin (4) disclose protected information, unless the disclosure:
new text end

new text begin (i) is made in furtherance of the educational purpose of the site, service, or
application, provided the recipient of the protected information must not further disclose
the information unless done to allow or improve operability and functionality of the
operator's online educational service;
new text end

new text begin (ii) is legally required to comply with subdivision 3;
new text end

new text begin (iii) is made to ensure legal and regulatory compliance, to respond to or participate
in judicial process, or to protect the safety of users or others or the security or integrity
of the site;
new text end

new text begin (iv) is for a school, educational, or employment purpose requested by the student
or the student's parent or guardian, provided that the information is not used or further
disclosed for any other purposes; or
new text end

new text begin (v) is made pursuant to a contract between the operator and a service provider. A
contract must prohibit the service provider from using protected information for any
purpose other than providing the contracted service to, or on behalf of, the operator;
prohibit the service provider from disclosing protected information provided by the
operator to third parties; and require the service provider to implement and maintain
reasonable security procedures and practices as provided in subdivision 3.
new text end

new text begin (b) This subdivision does not prohibit the operator's use of information for
maintaining, developing, supporting, improving, or diagnosing the operator's site, service,
or application.
new text end

new text begin Subd. 3. new text end

new text begin Security procedures and practices. new text end

new text begin An operator shall:
new text end

new text begin (1) implement and maintain reasonable security procedures and practices appropriate
to the nature of the protected information designed to protect that information from
unauthorized access, destruction, use, modification, or disclosure; and
new text end

new text begin (2) delete a student's protected information within a reasonable period of time
and in any case within 60 days if the school requests deletion of data under the control
of the school.
new text end

new text begin Subd. 4. new text end

new text begin Permissible disclosures. new text end

new text begin Notwithstanding subdivision 2, paragraph (a),
clause (4), an operator may use or disclose protected information of a student under the
following circumstances:
new text end

new text begin (1) if other provisions of federal or state law require the operator to disclose the
information and the operator complies with the requirements of federal or state law in
protecting and disclosing that information;
new text end

new text begin (2) as long as no covered information is used for advertising or to create a profile on
the student for purposes other than educational purposes, for legitimate research purposes:
new text end

new text begin (i) as required by state or federal law and subject to the restrictions under applicable
law; or
new text end

new text begin (ii) as allowed by state or federal law and in furtherance of educational purposes or
postsecondary educational purposes; and
new text end

new text begin (3) to a state or local educational agency, including schools and school districts, for
school purposes as permitted by state or federal law.
new text end

new text begin Subd. 5. new text end

new text begin Use of information by operator. new text end

new text begin This section does not prohibit an
operator from doing any of the following:
new text end

new text begin (1) using protected information within the operator's site, service, or application or
other sites, services, or applications owned by the operator to improve educational products;
new text end

new text begin (2) using protected information that is not associated with an identified student to
demonstrate the effectiveness of the operator's products or services, including marketing;
new text end

new text begin (3) sharing aggregate information that does not directly, indirectly, or in combination
with other information identify a student for the development and improvement of
educational sites, services, or applications;
new text end

new text begin (4) using recommendation engines to recommend to a student either of the following:
new text end

new text begin (i) additional content relating to an educational, other learning, or employment
opportunity purpose within an online site, service, or application if the recommendation is
not determined in whole or in part by payment or other consideration from a third party; or
new text end

new text begin (ii) additional services relating to an educational, other learning, or employment
opportunity purpose within an online site, service, or application if the recommendation is
not determined in whole or in part by payment or other consideration from a third party; or
new text end

new text begin (5) responding to a student's request for information or for feedback without the
information or response being determined in whole or in part by payment or other
consideration from a third party.
new text end

new text begin Subd. 6. new text end

new text begin Certain activities not affected. new text end

new text begin (a) This section does not limit the
authority of a law enforcement agency to obtain information from an operator as
authorized by law or pursuant to a court order.
new text end

new text begin (b) This section does not limit the ability of an operator to use student information,
including protected information, for adaptive learning or customized student learning
purposes.
new text end

new text begin (c) This section does not apply to general audience Web sites, general audience
online services, general audience online applications, or general audience mobile
applications, even if log-in credentials created for an operator's online educational service
may be used to access those general audience Web sites, services, or applications.
new text end

new text begin (d) This section does not limit Internet service providers from providing Internet
connectivity to schools or students and their families.
new text end

new text begin (e) This section does not prohibit an operator of a Web site, online service, online
application, or mobile application from the general marketing of educational products to
parents or legal guardians so long as the marketing is not based on the use of protected
information obtained by the operator through the provision of services governed by this
section.
new text end

new text begin (f) This section does not impose a duty upon a provider of an electronic store, gateway,
marketplace, or other means of purchasing or downloading software or applications to
review or enforce compliance with this section on those applications or software.
new text end

new text begin (g) This section does not impose a duty on a provider of an interactive computer
service, as defined in United States Code, title 47, section 230, to review or enforce
compliance with this section by third-party content providers.
new text end

new text begin (h) This section does not impede the ability of students to download, transfer, export,
or otherwise save or maintain their own data or documents.
new text end