USDE Model Terms of Service Guidance

On February 26, 2015, the Privacy Technical Assistant Center (“PTAC”) of the United States Department of Education issued a guide and training video concerning the use of online educational services and student privacy. In this advisory, we briefly discuss this new guidance.

Model Terms of Service.

In its guide, Protecting Student Privacy While Using Online Educational Services: Model Terms of Service, PTAC discusses its Model Terms of Service document that may be used to evaluate “click-wrap” agreements for online services for educational software, including applications (“apps”) and web-based tools. Unlike traditional contracts that are negotiated between a public school and its vendor, click-wrap agreements are generic agreements that specify the terms of service for the access and use of online software. If, through board resolution, district or campus improvement plan, or teacher lesson plan, a public school decides to use online educational software, such as the Chirp, Endless Alphabet, LightSail, Mind Tree, or Twelve a Dozen apps, school administrators should review the terms of service agreement before clicking accept to ensure that student privacy rights are not violated. To this end, PTAC’s Model Terms of Service may assist public schools in the review of these agreements and the identification of potentially adverse provisions that may raise the school’s risk of violating the Family Educational Rights and Privacy Act (“FERPA”) and other applicable student privacy laws.

Training Video.

In addition to the guide, PTAC also released a training video that summarizes the student privacy issues raised by the use of online educational services. Notably, public schools should appoint a committee to review and approve the use of online educational services, including the terms of service agreement, prior to use in the classroom. Once approved, administrators should retain a copy of the terms of service agreement on file for future reference. Also, because online service providers’ typically include a provision in their terms of service agreements permitting the unilateral amendment of the agreement, PTAC recommends the periodic review of term of service agreements to determine if the online service provider has changed any provision that may raise the risk of a FERPA or other student privacy law violation.

Resources.

Go to http://ptac.ed.gov/document/protecting-student-privacy-while-using-online-educational-services-model-terms-service to review PTAC’s guide.

Go to https://www.youtube.com/watch?v=deo2F19DK_o to view PTAC’s video.

Go to http://studentprivacypledge.org for information concerning online service providers that have signed the Student Privacy Pledge, an industry initiative to meet and exceed federal student privacy requirements.

Closing Remarks.

PTAC’s Model Terms of Service document and training video are instructive as to how public schools may mitigate the risk of a FERPA violation resulting from the inadvertent use of an app or other online educational software governed by a terms of service agreement that enables the vendor to collect and use students’ personally identifiable information. Schools should review the guide and video and implement a local process for ensuring that student data is protected in accordance with FERPA and other applicable law.