Cybersecurity 2018 – The Year in Preview: Privacy and Security in Educational Institutions

by Foley Hoag LLP - Privacy & Data Security
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Foley Hoag LLP - Privacy & Data Security

Editors’ Note:  This is the sixth in a multi-part end-of-year series examining important trends in data privacy and cybersecurity during the coming year.  Previous installments include analyses of HIPAA complianceemerging security threatsfederal enforcement trends, state enforcement trends, and biometrics.  Up next:  International law and cyberwar.

Educational institutions fuel innovation across many sectors, expanding and evolving as technology advances. It should come as no surprise, then, that data privacy and cybersecurity issues addressed throughout this Year in Preview Series all have an impact on the field of education. While the range of issues relevant to educational institutions is vast, events from 2017 provide some insight into some key issues that colleges, universities, and other educational institutions are likely to face in 2018.

More data, more problems?

The push for increased statistics and student data collection has taken hold in Congress, as multiple bills seeking to amend limitations on student data collection were introduced in 2017. Bipartisan bills were introduced in the Senate that aim to increase access to data on postsecondary graduate outcomes, like salaries, job placement, and graduation rates; and to generate reports on these statistics by tracking data at the student record level. Currently, institutions report data aggregated across students.

Opponents fear such legislation will invade student privacy and increase vulnerabilities to  data breaches.  The ACLU has raised concerns that national collection of student record level data could expose the immigration status of students in a precarious climate of increased deportations. The National Association of Independent Colleges and Universities also opposes a national student record database as posing “a serious and substantial risk to student privacy.” Proponents of student record level collection point to already ubiquitous personal data collection, the available security measures, and the benefits in achieving greater transparency about the return on tuition investment.

The new year should offer clarity about how the federal government will lean in the balance between privacy and transparency. The House Higher Education bill recently began debate in committee. While it initially recommended maintaining a ban on a federal data system, it was revised on December 11 to include language directing a feasibility study of data collection and reporting in some of the areas proponents seek, including post-graduation outcomes and earnings data (though at the institution and program level not the student record level). The Senate education committee has expressed its intention to work on its own version of the legislation early in 2018.

The Internet of Things and the College Years.

The push for increased access to student data coincides with the continued growth of innovative methods of collecting, storing, and accessing data. In an earlier post in this series, we called the Internet of Things “the most important macro-level technological development since the Internet itself.” And there is perhaps no sector more relevant to the growth of the Internet of Things than education. Postsecondary students arrive at higher education institutions across the nation armed with all things smart—phones, tablets, watches, etc. This year, the federal government embraced the explosion of smart devices and postsecondary students’ appetite for them, and announcing a 2018 launch of a mobile platform for Federal Student Aid.

As students are offered increased access to services on a variety of devices, from applying for federal aid by mobile phone to receiving text messages when their laundry is dry in the dorm’s laundry room, higher education institutions face the security realities of an ever-growing world of linked devices. In 2018, higher education institutions will continue to benefit from reviewing their data collection, retention, and destruction policies—as  well as their systems security measures—with  an eye toward the ever-expanding Internet of Things.

Data Breaches, Ransomware, and Regulations, Oh My.

More ways to connect and share data invites more vulnerabilities, and the specters of hackers, ransomware, and data breaches continue to loom large over the education sector. Educational institutions rank at the top of entities most vulnerable to attack. Universities, colleges, and school districts house vast amounts of sensitive data, ranging from personally identifying information to data from innovative academic and scientific research studies. As of December 12, 2017, 16 educational institutions suffered data breaches in 2017, according to the Privacy Rights Clearinghouse, with 20 reported in 2016 and 19 in 2015. In October, the Department of Education warned of ransomware threats to educational institutions and noted that several attacks, including attacks threatening violence against students, were under FBI investigation. Education systems have also been targeted in 2017 by hackers seeking backdoor entry into other government systems, like voting systems.

But system vulnerabilities are not limited to electronic attacks. In the spring of 2017, Washington State University suffered a data breach when a locked safe that housed a hard drive containing sensitive data was stolen from an off-site storage facility. The latter breach led to a class-action suit filed in July, which shortly thereafter was voluntarily dismissed. In addition to the reputational harm, the financial impact of the breach is significant, with costs exceeding the $150,000 deductible WSU must pay under its insurance (one report suggested $383,000 to $465,000 alone must have been spent on postage for the mailed notices over one million individuals).

The costs of inadequate data protection are increasingly high and extend beyond the boundaries of the United States. We have given a lot of attention to the E.U. General Data Protection Regulation (“GDPR”) in prior posts—and for good reason—the changes that go into effect in May 2018 have wide-sweeping implications. Higher education institutions of all sizes are likely to be impacted simply because of one particular change: the extension of the territorial scope of the regulations. Beginning in May, the regulations will apply to any organization that processes the personal information of E.U. residents, regardless of where the organization is based.  Higher education institutions that process personal data for students, faculty, alumni, or prospective students that include residents of the E.U. will need to review the requirements and assess their compliance.

While U.S. regulations like the Family Educational Rights and Privacy Act (“FERPA”) require some of the same protections, the GDPR has specific requirements that go beyond FERPA’s current protections. For example, the GDPR provides protections to “sensitive personal data” that FERPA does not cover, including racial and ethnic origin, religion, sexual orientation, and political views, among others. GDPR also provides the individual whose data was collected the right to revoke consent and request that the data be erased. As education becomes increasingly global, familiarity with regulations like the GDPR is increasingly critical to all sizes and types of higher education institutions.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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