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| | 100TH GENERAL ASSEMBLY
State of Illinois
2017 and 2018
SB2018 Introduced 2/10/2017, by Sen. Thomas Cullerton SYNOPSIS AS INTRODUCED:
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Creates the Student Data Privacy Act. On and after October 1, 2017, requires the school board of a school district to enter into a written contract with a contractor any time the school board shares or provides access to student information, student records, or student-generated content with that contractor. Among other provisions, sets forth provisions concerning contract requirements, contractor and operator requirements and prohibitions, security breach procedures, and the establishment of a task force to study issues relating to student data privacy. Effective immediately.
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| | FISCAL NOTE ACT MAY APPLY | | STATE MANDATES ACT MAY REQUIRE REIMBURSEMENT |
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1 | | AN ACT concerning education.
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2 | | Be it enacted by the People of the State of Illinois,
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3 | | represented in the General Assembly:
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4 | | Section 1. Short title. This Act may be cited as the |
5 | | Student Data Privacy Act.
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6 | | Section 5. Definitions. In this Act: |
7 | | "Contractor" means an operator or consultant that is in |
8 | | possession of or has access to student information, student |
9 | | records, or student-generated content as a result of a contract |
10 | | with a school board.
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11 | | "Consultant" means a professional who provides |
12 | | noninstructional services, including, but not limited to, |
13 | | administrative, planning, analysis, statistical or research |
14 | | services, to a school board pursuant to a contract with the |
15 | | school board. |
16 | | "De-identified student information" means any student |
17 | | information that has been altered to prevent the identification |
18 | | of an individual student.
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19 | | "Directory information" has the same meaning as provided in |
20 | | 34 CFR 99.3.
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21 | | "Operator" means any person who (i) operates an Internet |
22 | | web site, online service, or mobile application with actual |
23 | | knowledge that the Internet web site, online service, or mobile |
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1 | | application is used for school purposes and was designed and |
2 | | marketed for school purposes, to the extent it is engaged in |
3 | | the operation of that Internet web site, online service, or |
4 | | mobile application, and (ii) collects, maintains, or uses |
5 | | student information.
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6 | | "Persistent unique identifier" means a unique piece of |
7 | | information that can be used to recognize a user over time and |
8 | | across different Internet web sites, online services, or mobile |
9 | | applications and is acquired as a result of a student's use of |
10 | | an operator's Internet web site, online service, or mobile |
11 | | application.
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12 | | "School purposes" means purposes that customarily take |
13 | | place at the direction of a teacher or a school board or aid in |
14 | | the administration of school activities, including, but not |
15 | | limited to, instruction in the classroom, administrative |
16 | | activities, and collaboration among students, school |
17 | | personnel, or parents or legal guardians of students.
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18 | | "Student" means a person who is a resident of this State |
19 | | and who is (i) enrolled in a school district's preschool |
20 | | program, (ii) enrolled in any of grades kindergarten through 12 |
21 | | in a public school, (iii) receiving special education and |
22 | | related services under an individualized education program, or |
23 | | (iv) otherwise the responsibility of a school district.
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24 | | "Student-generated content" means any student materials |
25 | | created by a student, including, but not limited to, essays, |
26 | | research papers, portfolios, creative writing, music or other |
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1 | | audio files, or photographs, except "student-generated |
2 | | content" does not include student responses to a standardized |
3 | | assessment.
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4 | | "Student information" means personally identifiable |
5 | | information or material of a student in any media or format |
6 | | that is not publicly available and is any of the following: (i) |
7 | | created or provided by a student or the parent or legal |
8 | | guardian of a student to the operator in the course of the |
9 | | student, parent, or legal guardian using the operator's |
10 | | Internet web site, online service, or mobile application for |
11 | | school purposes, (ii) created or provided by an employee or |
12 | | agent of a school board to an operator for school purposes, or |
13 | | (iii) gathered by an operator through the operation of the |
14 | | operator's Internet web site, online service, or mobile |
15 | | application and identifies a student, including, but not |
16 | | limited to, information in the student's records or electronic |
17 | | mail account, first or last name, home address, telephone |
18 | | number, date of birth, electronic mail address, discipline |
19 | | records, test results, grades, evaluations, criminal records, |
20 | | medical records, health records, Social Security number, |
21 | | biometric information, disabilities, socioeconomic |
22 | | information, food purchases, political affiliations, religious |
23 | | affiliations, text messages, documents, student identifiers, |
24 | | search activity, photographs, voice recordings, survey |
25 | | responses, or behavioral assessments.
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26 | | "Student record" means any information directly related to |
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1 | | a student that is maintained by a school board or the State |
2 | | Board of Education or any information acquired from a student |
3 | | through the use of educational software assigned to the student |
4 | | by a teacher or employee of a school board, except "student |
5 | | record" does not include de-identified student information |
6 | | allowed under a contract to be used by the contractor to (i) |
7 | | improve educational products for adaptive learning purposes |
8 | | and customize student learning, (ii) demonstrate the |
9 | | effectiveness of the contractor's products in the marketing of |
10 | | those products, and (iii) develop and improve the contractor's |
11 | | products and services.
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12 | | "Targeted advertising" means presenting an advertisement |
13 | | to a student where the selection of the advertisement is based |
14 | | on student information, student records, or student-generated |
15 | | content or inferred over time from the usage of the operator's |
16 | | Internet web site, online service, or mobile application by a |
17 | | student or the retention of a student's online activities or |
18 | | requests over time for the purpose of targeting subsequent |
19 | | advertisements. "Targeted advertising" does not include any |
20 | | advertising to a student on an Internet web site that the |
21 | | student is accessing at the time or in response to a student's |
22 | | response or request for information or feedback.
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23 | | Section 10. Contract required. |
24 | | (a) This Section applies beginning on October 1, 2017 and |
25 | | is applicable to contracts entered into, amended, or renewed on |
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1 | | or after October 1, 2017. On and after October 1, 2017, the |
2 | | school board of a school district shall enter into a written |
3 | | contract with a contractor any time the school board shares or |
4 | | provides access to student information, student records, or |
5 | | student-generated content with the contractor. Each contract |
6 | | shall include, but need not be limited to, the following:
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7 | | (1) a statement that student information, student |
8 | | records, and student-generated content are not the |
9 | | property of or under the control of a contractor;
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10 | | (2) a description of the means by which the school |
11 | | board may request the deletion of student information, |
12 | | student records, or student-generated content in the |
13 | | possession of the contractor;
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14 | | (3) a statement that the contractor shall not use |
15 | | student information, student records, and |
16 | | student-generated content for any purposes other than |
17 | | those authorized pursuant to the contract;
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18 | | (4) a description of the procedures by which a student |
19 | | or parent or legal guardian of a student may review |
20 | | personally identifiable information contained in student |
21 | | information, student records, or student-generated content |
22 | | and correct erroneous information, if any, in the student |
23 | | record;
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24 | | (5) a statement that the contractor shall take actions |
25 | | designed to ensure the security and confidentiality of |
26 | | student information, student records, and |
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1 | | student-generated content;
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2 | | (6) a description of the procedures that a contractor |
3 | | will follow to notify the school board, in accordance with |
4 | | the provisions of Section 20 of this Act, when there has |
5 | | been an unauthorized release, disclosure, or acquisition |
6 | | of student information, student records, or |
7 | | student-generated content;
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8 | | (7) a statement that student information, student |
9 | | records, or student-generated content shall not be |
10 | | retained or available to the contractor upon completion of |
11 | | the contracted services unless a student or parent or legal |
12 | | guardian of a student chooses to establish or maintain an |
13 | | electronic account with the contractor for the purpose of |
14 | | storing student-generated content;
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15 | | (8) a statement that the contractor and the school |
16 | | board shall ensure compliance with the federal Family |
17 | | Educational Rights and Privacy Act of 1974;
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18 | | (9) a statement that the laws of this State shall |
19 | | govern the rights and duties of the contractor and the |
20 | | school board; and |
21 | | (10) a statement that if any provision of the contract |
22 | | or the application of the contract is held invalid by a |
23 | | court of competent jurisdiction, the invalidity does not |
24 | | affect other provisions or applications of the contract |
25 | | that can be given effect without the invalid provision or |
26 | | application.
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1 | | (b) All student-generated content shall be the property of |
2 | | the student or the parent or legal guardian of the student.
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3 | | (c) A contractor shall implement and maintain security |
4 | | procedures and practices designed to protect student |
5 | | information, student records, and student-generated content |
6 | | from unauthorized access, destruction, use, modification, or |
7 | | disclosure that, based on the sensitivity of the data and the |
8 | | risk from unauthorized access:
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9 | | (1) use technologies and methodologies that are |
10 | | consistent with the guidance issued pursuant to Section |
11 | | 13402(h)(2) of Public Law 111-5, as amended from time to |
12 | | time;
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13 | | (2) maintain technical safeguards as it relates to the |
14 | | possession of student records in a manner consistent with |
15 | | the provisions of 45 CFR 164.312; and
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16 | | (3) otherwise meet or exceed industry standards.
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17 | | (d) A contractor shall not use (i) student information, |
18 | | student records, or student-generated content for any purposes |
19 | | other than those authorized pursuant to the contract or (ii) |
20 | | personally identifiable information contained in student |
21 | | information, student records, or student-generated content to |
22 | | engage in targeted advertising.
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23 | | (e) Any provision of a contract entered into between a |
24 | | contractor and a school board on or after October 1, 2017 that |
25 | | conflicts with any provision of this Section shall be void.
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26 | | (f) Any contract entered into on or after October 1, 2017 |
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1 | | that does not include a provision required by subsection (a) of |
2 | | this Section shall be void, provided that the school board has |
3 | | given reasonable notice to the contractor and the contractor |
4 | | has failed within a reasonable time to amend the contract to |
5 | | include the provision required by subsection (a) of this |
6 | | Section.
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7 | | (g) Not later than 5 business days after executing a |
8 | | contract pursuant to this Section, a school board shall provide |
9 | | electronic notice to any student and the parent or legal |
10 | | guardian of a student affected by the contract. The notice |
11 | | shall (i) state that the contract has been executed and the |
12 | | date that the contract was executed, (ii) provide a brief |
13 | | description of the contract and the purpose of the contract, |
14 | | and (iii) state what student information, student records, or |
15 | | student-generated content may be collected as a result of the |
16 | | contract. The school board shall post the notice and the |
17 | | contract on the school district's Internet web site.
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18 | | Section 15. Operators. |
19 | | (a) This Section applies beginning October 1, 2017. An |
20 | | operator shall:
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21 | | (1) implement and maintain security procedures and |
22 | | practices that meet or exceed industry standards and that |
23 | | are designed to protect student information, student |
24 | | records, and student-generated content from unauthorized |
25 | | access, destruction, use, modification, or disclosure; and
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1 | | (2) delete any student information, student records, |
2 | | or student-generated content within a reasonable amount of |
3 | | time if a student, parent or legal guardian of a student, |
4 | | or school board that has the right to control the student |
5 | | information requests the deletion of the student |
6 | | information, student records, or student-generated |
7 | | content.
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8 | | (b) An operator shall not knowingly:
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9 | | (1) engage in (i) targeted advertising on the |
10 | | operator's Internet web site, online service, or mobile |
11 | | application or (ii) targeted advertising on any other |
12 | | Internet web site, online service, or mobile application if |
13 | | the advertising is based on any student information, |
14 | | student records, student-generated content, or persistent |
15 | | unique identifiers that the operator has acquired because |
16 | | of the use of the operator's Internet web site, online |
17 | | service, or mobile application for school purposes;
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18 | | (2) collect, store, and use student information, |
19 | | student records, student-generated content, or persistent |
20 | | unique identifiers for purposes other than the furtherance |
21 | | of school purposes;
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22 | | (3) sell, rent, or trade student information, student |
23 | | records, or student-generated content unless the sale is |
24 | | part of the purchase, merger, or acquisition of an operator |
25 | | by a successor operator and the operator and successor |
26 | | operator continue to be subject to the provisions of this |
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1 | | Section regarding student information; or
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2 | | (4) disclose student information, student records, or |
3 | | student-generated content unless the disclosure is made:
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4 | | (A) in furtherance of school purposes of the |
5 | | Internet web site, online service, or mobile |
6 | | application, provided that the recipient of the |
7 | | student information uses the student information to |
8 | | improve the operability and functionality of the |
9 | | Internet web site, online service, or mobile |
10 | | application and complies with subsection (a) of this |
11 | | Section;
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12 | | (B) to ensure compliance with federal or State law |
13 | | or rules or pursuant to a court order;
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14 | | (C) in response to a judicial order;
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15 | | (D) to protect the safety or integrity of users or |
16 | | others or the security of the Internet web site, online |
17 | | service, or mobile application;
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18 | | (E) to an entity hired by the operator to provide |
19 | | services for the operator's Internet web site, online |
20 | | service, or mobile application, provided that the |
21 | | operator contractually (i) prohibits the entity from |
22 | | using student information, student records, or |
23 | | student-generated content for any purpose other than |
24 | | providing the contracted service to or on behalf of the |
25 | | operator, (ii) prohibits the entity from disclosing |
26 | | student information, student records, or |
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1 | | student-generated content provided by the operator to |
2 | | subsequent third parties, and (iii) requires the |
3 | | entity to comply with subsection (a) of this Section; |
4 | | or
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5 | | (F) for a school purpose or other educational or |
6 | | employment purpose requested by a student or the parent |
7 | | or legal guardian of a student, provided that the |
8 | | student information is not used or disclosed for any |
9 | | other purpose.
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10 | | (c) An operator may use student information:
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11 | | (1) to maintain, support, improve, evaluate, or |
12 | | diagnose the operator's Internet web site, online service, |
13 | | or mobile application;
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14 | | (2) for adaptive learning purposes or customized |
15 | | student learning; |
16 | | (3) to provide recommendation engines to recommend |
17 | | content or services relating to school purposes or other |
18 | | educational or employment purposes, provided that the |
19 | | recommendation is not determined in whole or in part by |
20 | | payment or other consideration from a third party; or
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21 | | (4) to respond to a request for information or feedback |
22 | | from a student, provided that the response is not |
23 | | determined in whole or in part by payment or other |
24 | | consideration from a third party.
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25 | | (d) An operator may use de-identified student information |
26 | | or aggregated student information:
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1 | | (1) to develop or improve the operator's Internet web |
2 | | site, online service, or mobile application or other |
3 | | Internet web sites, online services, or mobile |
4 | | applications owned by the operator; or
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5 | | (2) to demonstrate or market the effectiveness of the |
6 | | operator's Internet web site, online service, or mobile |
7 | | application.
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8 | | (e) An operator may share aggregated student information or |
9 | | de-identified student information for the improvement and |
10 | | development of Internet web sites, online services, or mobile |
11 | | applications designed for school purposes.
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12 | | (f) Nothing in this Section shall be construed to:
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13 | | (1) limit the ability of a law enforcement agency to |
14 | | obtain student information, student records, or |
15 | | student-generated content from an operator as authorized |
16 | | by law or pursuant to a court order;
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17 | | (2) limit the ability of a student or the parent or |
18 | | legal guardian of a student to download, export, transfer, |
19 | | or otherwise save or maintain student information, student |
20 | | records, or student-generated content;
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21 | | (3) impose a duty upon a provider of an interactive |
22 | | computer service, as defined in 47 U.S.C. 230, to ensure |
23 | | compliance with this Section by third-party information |
24 | | content providers, as defined in 47 U.S.C. 230;
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25 | | (4) impose a duty upon a seller or provider of an |
26 | | electronic store, gateway, marketplace, or other means of |
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1 | | purchasing or downloading software applications to review |
2 | | or enforce compliance with this Section on the software |
3 | | applications;
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4 | | (5) limit an Internet service provider from providing a |
5 | | student, parent or legal guardian of a student, or school |
6 | | board with the ability to connect to the Internet;
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7 | | (6) prohibit an operator from advertising other |
8 | | Internet web sites, online services, or mobile |
9 | | applications that are used for school purposes to parents |
10 | | or legal guardians of students, provided that the |
11 | | advertising does not result from the operator's use of |
12 | | student information, student records, or student-generated |
13 | | content; or
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14 | | (7) apply to Internet web sites, online services, or |
15 | | mobile applications that are designed and marketed for use |
16 | | by individuals generally, even if the account credentials |
17 | | created for an operator's Internet web site, online |
18 | | service, or mobile application may be used to access |
19 | | Internet web sites, online services, or mobile |
20 | | applications that are designed and marketed for school |
21 | | purposes.
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22 | | Section 20. Security breach. |
23 | | (a) This Section applies beginning October 1, 2017.
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24 | | (1) Upon the discovery of a breach of security that |
25 | | results in the unauthorized release, disclosure, or |
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1 | | acquisition of student information, excluding any |
2 | | directory information contained in the student |
3 | | information, a contractor shall notify, without |
4 | | unreasonable delay, but not more than 30 days after the |
5 | | discovery, the school board of the breach of security. |
6 | | During the 30-day period, the contractor may: |
7 | | (A) conduct an investigation to determine the |
8 | | nature and scope of the unauthorized release, |
9 | | disclosure, or acquisition and the identity of the |
10 | | students whose student information is involved in the |
11 | | unauthorized release, disclosure, or acquisition; or
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12 | | (B) restore the reasonable integrity of the |
13 | | contractor's data system.
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14 | | (2) Upon the discovery of a breach of security that |
15 | | results in the unauthorized release, disclosure, or |
16 | | acquisition of directory information, student records, or |
17 | | student-generated content, a contractor shall notify, |
18 | | without unreasonable delay, but not more than 60 days after |
19 | | the discovery, the school board of the breach of security. |
20 | | During the 60-day period, the contractor may:
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21 | | (A) conduct an investigation to determine the |
22 | | nature and scope of the unauthorized release, |
23 | | disclosure, or acquisition and the identity of the |
24 | | students whose directory information, student records, |
25 | | or student-generated content is involved in the |
26 | | unauthorized release, disclosure, or acquisition; or
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1 | | (B) restore the reasonable integrity of the |
2 | | contractor's data system.
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3 | | (3) Upon receipt of notice of a breach of security |
4 | | under subdivisions (1) or (2) of this subsection (a), a |
5 | | school board shall electronically notify, not later than 48 |
6 | | hours after receipt of the notice, the student and the |
7 | | parents or legal guardians of the student whose student |
8 | | information, student records, or student-generated content |
9 | | is involved in the breach of security. The school board |
10 | | shall post the notice on the school district's Internet web |
11 | | site.
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12 | | (b) Upon the discovery of a breach of security that results |
13 | | in the unauthorized release, disclosure, or acquisition of |
14 | | student information, student records, or student-generated |
15 | | content, an operator that is in possession of or maintains |
16 | | student information, student records, or student-generated |
17 | | content as a result of a student's use of the operator's |
18 | | Internet web site, online service, or mobile application shall:
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19 | | (1) notify, without unreasonable delay, but not more |
20 | | than 30 days after the discovery, the student or the |
21 | | parents or legal guardians of the student of any breach of |
22 | | security that results in the unauthorized release, |
23 | | disclosure, or acquisition of student information, |
24 | | excluding any directory information contained in the |
25 | | student information; and
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26 | | (2) notify, without unreasonable delay, but not more |
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1 | | than 60 days after the discovery, the student or the |
2 | | parents or legal guardians of the student of any breach of |
3 | | security that results in the unauthorized release, |
4 | | disclosure, or acquisition of directory information, |
5 | | student records, or student-generated content of the |
6 | | student.
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7 | | During the 30-day or 60-day period, the operator may (i) |
8 | | conduct an investigation to determine the nature and scope of |
9 | | the unauthorized release, disclosure, or acquisition and the |
10 | | identity of the students whose student information, student |
11 | | records, or student-generated content are involved in the |
12 | | unauthorized release, disclosure, or acquisition or (ii) |
13 | | restore the reasonable integrity of the operator's data system.
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14 | | Section 25. Task force. |
15 | | (a) There is established a task force to study issues |
16 | | relating to student data privacy. The study shall include, but |
17 | | not be limited to, an examination of:
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18 | | (1) when a parent or legal guardian of a student may |
19 | | reasonably or appropriately request the deletion of |
20 | | student information, student records, or student-generated |
21 | | content that is in the possession of a contractor or |
22 | | operator;
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23 | | (2) means of providing notice to parents and legal |
24 | | guardians of students when a student uses an Internet web |
25 | | site, online service, or mobile application of an operator |
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1 | | for instructional purposes in a classroom or as part of an |
2 | | assignment by a teacher;
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3 | | (3) reasonable penalties for violations of this Act, |
4 | | such as restricting a contractor or operator from accessing |
5 | | or collecting student information, student records, or |
6 | | student-generated content;
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7 | | (4) strategies in effect in other states that ensure |
8 | | that school employees, contractors, and operators are |
9 | | trained in data security handling, compliance, and best |
10 | | practices;
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11 | | (5) the feasibility of developing a school |
12 | | district-wide list of approved Internet web sites, online |
13 | | services, and mobile applications;
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14 | | (6) the use of an administrative hearing process |
15 | | designed to provide legal recourse to students and parents |
16 | | and legal guardians of students aggrieved by any violation |
17 | | of this Act;
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18 | | (7) the feasibility of creating an inventory of student |
19 | | information, student records, and student-generated |
20 | | content currently collected pursuant to State and federal |
21 | | law;
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22 | | (8) the feasibility of developing a tool kit for use by |
23 | | school boards to:
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24 | | (A) improve student data contracting practices and |
25 | | compliance, including a statewide template for use by |
26 | | districts;
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1 | | (B) increase school employee awareness of student |
2 | | data security best practices, including model training |
3 | | components;
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4 | | (C) develop district-wide lists of approved |
5 | | software applications and Internet web sites; and
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6 | | (D) increase the availability and accessibility of |
7 | | information on student data privacy for parents and |
8 | | legal guardians of students and educators; and |
9 | | (9) any other issue involving student data security |
10 | | that the task force deems relevant.
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11 | | (b) The task force shall consist of all of the following |
12 | | members, who shall serve without compensation but may be |
13 | | reimbursed for their reasonable and necessary expenses from |
14 | | funds appropriated for that purpose:
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15 | | (1) Members appointed by the State Superintendent of |
16 | | Education as follows:
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17 | | (A) One operator, one representative of a |
18 | | contractor, and 2 experts in information technology |
19 | | systems.
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20 | | (B) One representative or member of a statewide |
21 | | professional teachers' organization and one |
22 | | representative or member of a different statewide |
23 | | professional teachers' organization.
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24 | | (C) One representative or member of a statewide |
25 | | parent teacher association and one high school student |
26 | | in this State.
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1 | | (D) One student privacy advocate.
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2 | | (E) One representative or member of a statewide |
3 | | association of school boards.
|
4 | | (F) One representative of a statewide association |
5 | | of school administrators and one representative or |
6 | | member of a statewide association of school district |
7 | | superintendents.
|
8 | | (2) The Attorney General or the Attorney General's |
9 | | designee.
|
10 | | (3) The State Superintendent of Education, who shall |
11 | | serve as chairperson.
|
12 | | (c) All appointments to the task force shall be made not |
13 | | later than 30 days after the effective date of this Act. Any |
14 | | vacancy shall be filled by the appointing authority.
|
15 | | (d) The chairperson shall schedule the first meeting of the |
16 | | task force, which shall be held not later than 60 days after |
17 | | the effective date of this Act.
|
18 | | (e) The State Board of Education shall provide |
19 | | administrative and other support to the task force.
|
20 | | (f) Not later than January 1, 2018, the task force shall |
21 | | submit a report on its findings and recommendations to the |
22 | | General Assembly. The task force shall terminate on the date |
23 | | that it submits its report or January 1, 2018, whichever is |
24 | | later.
|
25 | | (g) This Section is repealed on January 1, 2019.
|
26 | | Section 99. Effective date. This Act takes effect upon |