SF 2604

2nd Engrossment - 89th Legislature (2015 - 2016) Posted on 04/04/2016 08:46am

A bill for an act
relating to data privacy; education; 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; amending Minnesota Statutes 2014, sections 13.321,
by adding a subdivision; 120B.11, subdivision 4; 120B.30, subdivision 2, by
adding subdivisions; 120B.31, subdivision 5, by adding subdivisions; Minnesota
Statutes 2015 Supplement, sections 120B.30, subdivision 4; 120B.301; proposing
coding for new law in Minnesota Statutes, chapter 125B.

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

Section 1.

Minnesota Statutes 2014, section 13.321, is amended by adding a
subdivision to read:

new text begin Subd. 11. new text end

new text begin Student-user privacy requirements. new text end

new text begin Section 125B.27 governs privacy
and information practices of online educational services.
new text end

Sec. 2.

Minnesota Statutes 2014, section 120B.11, subdivision 4, is amended to read:

Subd. 4.

Site team.

A school deleted text begin may deleted text end new text begin must new text end establish a site team to develop and
implement strategies and education effectiveness practices to improve instruction,
curriculum, cultural competencies, including cultural awareness and cross-cultural
communication, and student achievement at the school site, consistent with subdivision
2. new text begin The site team must include an equal number of teachers and administrators, as well
as at least one parent. new text end The new text begin site new text end team advises the board and the advisory committee
about developing the annual budget deleted text begin and revising deleted text end new text begin ; creates new text end an instruction and curriculum
improvement plan that aligns curriculum, assessment of student progress, and growth in
meeting state and district academic standards and instruction new text begin ; and coordinates with other
district site teams to select the standardized assessments that the school will administer
to students, in addition to required assessments under section 120B.30, and applicable
federal law new text end .

Sec. 3.

Minnesota Statutes 2014, section 120B.30, subdivision 2, is amended to read:

Subd. 2.

Department of Education assistance.

new text begin (a) new text end The Department of Education
shall contract for professional and technical services according to competitive solicitation
procedures under chapter 16C for purposes of this section.

new text begin (b) A bid submitted under this section must include disclosures containing:
new text end

new text begin (1) comprehensive information regarding test administration monitoring practices;
and
new text end

new text begin (2) data privacy safeguards for student information to be transmitted to or used by
the bidding entity.
new text end

new text begin Information provided in the bid is not security information or trade secret information for
purposes of section 13.37.
new text end

new text begin (c) An entity responsible for evaluating and scoring testing contracted for under
paragraph (a) must agree that all writing assessments are scored by at least two
Minnesota-licensed teachers who have been licensed by the state of Minnesota to teach
language arts, or teacher licensure candidates who have achieved a passing score on the
basic skills exams in reading and writing adopted by the Board of Teaching.
new text end

Sec. 4.

Minnesota Statutes 2015 Supplement, section 120B.30, subdivision 4, is
amended to read:

Subd. 4.

Access to tests.

Consistent with section 13.34, the commissioner
must adopt and publish deleted text begin a policy to provide public and parental access for review of
deleted text end new text begin on the commissioner's Web site new text end Minnesota-developed assessments deleted text begin which would not
compromise the objectivity or fairness of the testing or examination process deleted text end new text begin after data
from the assessments are made publicly available new text end . deleted text begin Upon receiving a written request, deleted text end The
commissioner must deleted text begin make available deleted text end new text begin send new text end to parents or guardians a copy of their student's
deleted text begin actual deleted text end responses to the test questions for their review new text begin as well as the test questions and the
correct answers, no later than the first day of the academic year following the year in
which their student took the assessment new text end .

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective for the 2018-2019 school year and
later.
new text end

Sec. 5.

Minnesota Statutes 2014, section 120B.30, is amended by adding a subdivision
to read:

new text begin Subd. 6. new text end

new text begin Database. new text end

new text begin The commissioner shall establish a reporting system for
teachers, administrators, and students to report service disruptions and technical
interruptions. The information reported through this system shall be maintained in a
database accessible through the department's Web site.
new text end

Sec. 6.

Minnesota Statutes 2014, section 120B.30, is amended by adding a subdivision
to read:

new text begin Subd. 7. new text end

new text begin Retaliation prohibited. new text end

new text begin A report to the commissioner concerning service
disruptions and technical interruptions is subject to the protection of section 181.932,
governing disclosure of information by employees.
new text end

Sec. 7.

Minnesota Statutes 2015 Supplement, section 120B.301, is amended to read:

120B.301 LIMITS ON LOCAL TESTING.

(a) For students in grades 1 through 6, the cumulative total amount of time spent
taking locally adopted districtwide or schoolwide assessments must not exceed ten hours
per school year. For students in grades 7 through 12, the cumulative total amount of time
spent taking locally adopted districtwide or schoolwide assessments must not exceed 11
hours per school year. For purposes of this paragraph, International Baccalaureate and
Advanced Placement exams are not considered locally adopted assessments.

(b) A district or charter school is exempt from the requirements of paragraph (a),
if the district or charter school, in consultation with the exclusive representative of the
teachers or other teachers if there is no exclusive representative of the teachers, decides
to exceed a time limit in paragraph (a) and includes in the report required under section
120B.11, subdivision 5.

new text begin (c) A district or charter school must, prior to the first day of each school year, publish
on their Web site a comprehensive calendar of standardized tests to be administered in
the district or charter school. The calendar must provide the rationale for administering
each assessment and whether the assessment is a local option, or a state or federally
required assessment.
new text end

Sec. 8.

Minnesota Statutes 2014, section 120B.31, is amended by adding a subdivision
to read:

new text begin Subd. 4a. new text end

new text begin Student participation. new text end

new text begin The commissioner shall create and publish a
form for parents to complete if they refuse for their child to participate in standardized
testing. The form must state why there are academic standards, if the tests are aligned with
those standards, and what consequences, if any, the school may face if students do not
participate in standardized testing. This form must request a reason for the refusal.
new text end

Sec. 9.

Minnesota Statutes 2014, section 120B.31, subdivision 5, is amended to read:

Subd. 5.

deleted text begin Parent deleted text end new text begin Access to new text end information.

To ensure the effective involvement
of parents and to support a partnership between the school and parents, each district
shall deleted text begin annually deleted text end provide parents new text begin and teachers new text end a timely written summary, in an electronic
or other format, of their student's current and longitudinal performance and progress
on the state's academic content standards as measured by state assessments. Providing
parents with a summary prepared by the Department of Education fulfills the requirements
of this subdivision.

Sec. 10.

Minnesota Statutes 2014, section 120B.31, is amended by adding a
subdivision to read:

new text begin Subd. 6. new text end

new text begin Test preparation costs. new text end

new text begin The department must annually compile and
publish data relating to expenditures by school districts for preparation of all assessments
administered pursuant to section 120B.30, including the costs of materials and staff time.
new text end

Sec. 11.

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 personally identifiable information or 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