Update

Flood of State Student Privacy Laws Complicate Game Development

Smaller edtech companies and developers not up to date on their state’s student privacy policies probably have a lot of catching up to do.

Since the Federal Trade Commission updated a law prohibiting the collection of children’s personal information at the end of 2012, legislatures in nearly every state have released a wave of new legislation meant to ease anxieties over the unwanted release of student data, especially for marketing purposes.

In just 2015, 46 states introduce 182 bills resulting in 15 states with 28 new laws to protect student data.

In just 2015, 46 states introduce 182 bills resulting in 15 states with 28 new laws to protect student data.

According to the Data Quality Campaign, a Washington D.C.-based nonprofit, 46 states introduced nearly 200 bills designed to protect student data. Fifteen states passed 28 new or updated laws, creating a somewhat dizzying landscape for developers trying to comply with different privacy standards from state to state.

The fear of third parties sharing or selling student data has legislatures worried, too. In the last year, state senators and representatives have proposed at least four bills meant to prevent third-parties from sharing student data they might have collected, analyzed and stored in their cloud.

For now, an edtech company that tracks student data for any reason has to stay nimble while complying with varying state laws, and tread carefully with their client’s information.

“To be blunt, if you don’t, you get really bad press,” said Sara Kloek, director of policy initiatives for ACT | The App Association.

Indeed, the news for some of the more prominent student data companies hasn’t been great.

A combination of educators, politicians and the Bill & Melinda Gates Foundation couldn’t save student data nonprofit inBloom from shutting down over fears —not incidents — that their client’s data might leak.

Last June, Education giant Pearson sold PowerSchool, a student information and grade tracking system with 13-million student-users, nine years after acquiring the system from Apple. Four months before the sale, edSurge reported Pearson decided that Powerschool didn’t align their “commitment to focus on products and services that shape student outcomes in a way we can directly measure and improve.”

ACT’s Kloek said protecting student data privacy has always been a primary concern for their 5,000 members, but it’s often difficult to stay ahead of the student data learning curve.

“I think any law that goes into effect is difficult to look at for small independent developers, because, when you’re a shop of 12 or 15, you don’t have law firms or lawyers on retainer to help you comply with those laws,” Kloek said.

Even without a lawyer, developers are trying to stay current. “The main overhead we see from all of the various laws is that someone has to pay attention to them,” said Brent Milne, vice president of research and co-founder of Woot Math, makers of personalized algebra games.

“Having to engage, individually, with dozens, hundreds, or thousands of districts on data handling and many other topics can be extremely challenging for smaller teams,” Milne said, “but that is really one of the fundamental challenges of the education market: the fragmentation of the market and the heterogeneous requirements, all with federal, state, and district level concerns.”

This fragmented challenge applies across the board, according to Milne, not just to privacy requirements. It’s s one reason why the market is “favorable to a few large publishers and very challenging to smaller developers.”

What’s still unclear is the role marketing has to play within educational apps. Most edtech companies steer clear of any association between student data and marketing. However, at least one commercial group, the Software and Information Industry Association, is trying to create a law that would allow some use of data — the Safe Kids Act authored by U.S. Sens. Richard Blumenthal (D-CT) and Steve Daines (R-MT).

The bill was met by mixed reaction from those who want to ensure there is no data generated by apps in school that can be used for commercial purposes.

“The bill does not go far enough in protecting children from potentially harmful commercial influences.  Websites, apps, and software assigned to students by their schools should be free of all advertising, regardless of whether the ads are contextual or based on data-mining students during each one of their internet sessions,” Josh Golin, Executive Director of the Campaign for a Commercial-Free Childhood, said in a statement. “Schools should not be allowed to sell or offer up their students’ data, time and attention to marketers for any reason.”

Common Sense Media also criticized SIIA’s support for the bill, saying they saw the lobby group’s move as an effort to soften the proposal to allow certain types of marketing in school districts.

Despite the debate over the federal initiative, app industry supporters caution that the lack of a single national privacy standard is becoming a major impediment to building new educational tools.

ACT launched Know What's Inside to promote apps with solid data privacy policies.

ACT launched Know What’s Inside to promote apps with solid data privacy policies.

“Companies and developers need clear definitions about what type of marketing is OK and what isn’t OK.” said Kloek, who helped found ACT’s privacy site, Know What’s Inside, which has more than 400 participating companies.

“With dozens of student privacy bills introduced across the country,” she said, “app developers should continue to be transparent about their data and marketing practices so teachers, parents, and students are not surprised by what’s inside the apps.

Woot Math steers completely clear of marketing, keeping student data separate from customer data, and refraining from marketing in their apps, but Milne said unclear privacy legislation unsettles business owners and can stifle innovation.

“For example, if a law is unclear about the ways in which anonymous data can be used to legitimately improve an educational service, then you end up in the situation that the business has to decide how to interpret the law, assess the risks, and decide for or against pursuing important opportunities for innovation that they believe would benefit students,” he said.

Milne just hopes Congressional moves don’t further clutter an already complicated mix of regulations that govern schools districts. For now, he is operating in the most conservative way possible in terms of privacy, saying, “Use student data only in ways that are unassailable from any policy on student data and privacy that may come down the pipes. That was our approach, and we have found that it has served us well.”

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Christopher B. Allen Christopher B. Allen is a contributing editor for gamesandlearning.org, as well as a radio producer and anchor for Montana Public Radio. He graduated with a Bachelor of Arts in Journalism from the University of Montana, and won 1st place in the 2014 National Hearst Journalism Awards for radio broadcast. Chris is also an Air Force veteran.