Senators make changes to amendment after journalism advocates voice concerns with previous draft

(STUDENT PRESS LAW CENTER, originally published July 30, 2014)

WASHINGTON, D.C. — Legislation introduced in the U.S. Senate Wednesday will not aim to redefine what records schools can withhold under federal student privacy law, an issue that worried journalism and open-government advocates when an earlier version of the bill was released.

Sens. Ed Markey, D-Mass, and Orrin Hatch, R-Utah, introduced the bill, an amendment to the Family Educational Rights and Privacy Act, in an effort to better protect student data held by third-party companies that could sell or monetize student data.

In June, the Student Press Law Center, the Reporters Committee for Freedom of the Press, the American Society of News Editors, the Society of Professional Journalists, OpenTheGovernment.org and Californians Aware sent a letter to Markey and Hatch detailing concerns with a draft bill released in May.

The concern focused primarily on one paragraph that would have widened the definition of what constitutes an education record protected under FERPA. Currently, institutions are prohibited from releasing education records and personally identifiable information obtained from those records.

In the draft bill, however, institutions would have been prohibited from releasing any personally identifiable information held by the institution, including information not contained in or obtained from education records.

The letter also urged the senators to use this amendment to fix shortcomings in FERPA that can be misused by schools to withhold information from the public. However, the bill introduced Wednesday does not address this issue.

“Unfortunately, they’re not going to use this as a vehicle to reverse decades of misinterpretation of the law,” ASNE legal counsel Kevin Goldberg said. “We’ll continue to try to educate Congress, the Department of Education, schools and reporters on the proper application of FERPA.”

Both Markey’s and Hatch’s offices received feedback from stakeholders including parents, educators, industry representatives, advocates and privacy researchers after releasing the draft bill, Markey Spokeswoman Giselle Barry said. She did not respond to questions about why the language of the bill was changed. Hatch Spokesman Matthew Harakal did not respond to telephone calls or an email requesting a comment.

“It was really nice to see that the senators’ staffs had obviously listened,” RCFP legal fellow Emily Grannis said. “The fear was that suddenly everything would be considered an education record. Now, we’re at least maintaining the status quo, which is not great but we definitely didn’t want to expand the definition.”