See You In Court! - July/August 2016

by Shipman & Goodwin LLP

Out of the blue, Nancy Newshound, longtime reporter for the Nutmeg Bugle called Mr. Superintendent.  “I understand that a student hacked the district’s system and changed a bunch of grades,” she stated.  “What can you tell me about that?”

Mr. Superintendent had just learned of the breach that morning, and he was waiting for a report from the IT Department.  “In all candor, Nancy, I am not sure what happened,” he responded.  “How do you know about this?”

 “As usual,” Nancy chided Mr. Superintendent, “you are the last to know.  Don’t you read social media?  Students are all over the Internet chattering about how some Robin Hood-type got into PowerSchool and leveled the playing field by raising the grades of average students and lowering the grades of the class leaders.  For the record, what do you have to say for yourself?”

 “I have no comment at this time.  I will neither confirm nor deny that some person may or may not have gained unauthorized access to our computers.”  With that, Mr. Superintendent ended the conversation, his mind racing as to next steps.  But before he could do anything, the telephone rang again, this time with veteran Board member Bob Bombast on the line.  “My son heard on social media that someone is changing grades,” Bob shouted without prelude.  “Sure enough, when he checked his own grades, he found that somebody had given him a bunch of C's and a few F's as final grades for the last semester.  I want the miscreant who did that expelled immediately!”

Mr. Superintendent had to explain that he was still waiting for a report from the IT Department, but he promised to get back to Bob soon.  Bob grumbled in closing that “soon” was not soon enough, so Mr. Superintendent promptly emailed the full Board a preliminary report.  Several Board members emailed back, echoing Bob’s sentiment that expulsion would be too good for any student who would dare to change grades.

It didn’t take too long for the IT Department to figure out who had caused the trouble, and the IT Director sent Mr. Superintendent a full report on the breach.  The Director identified the hacker, a cerebral loner who is a rising junior.  The Director assured Mr. Superintendent that the district had already restored the proper grades, and he further reported that he is looking into new security software to prevent such breaches in the future.  Mr. Superintendent promptly forwarded the report on to the Board members, telling them that the problem is solved and asking that they refrain from public comment.  In response, several of the Board agreed, but they again expressed great interest in hearing the expulsion case against the hacker.

Just as Mr. Superintendent thought he was all set, Nancy Newshound called back to ask for an update.  Mr. Superintendent explained that everything was under control, and that he had no further comment for her.  Undeterred, Nancy made an FOIA request for copies of all communications to and from the Board members concerning this matter.  She also scolded Mr. Superintendent for trying to sweep this matter under the rug, opining that he owed parents and students a full explanation.

Is Mr. Superintendent within his rights to keep quiet about the breach?

*        *        *

Public Act 16-189, An Act Concerning Student Data Privacy, will govern such situations in the future.  This law, which is effective this October 1, imposes significant new requirements on school districts and on persons and companies that receive student data in their work with the district.  Given the scope of these requirements, school districts should start now with the necessary planning and work to implement the law. 

For starters, districts will have to have written contracts with all “contractors” who receive student data in working with the school district.  The term “contractor” includes both (1) “consultants,” who are defined as professionals who provide non-instructional services pursuant to a contract with school districts, and (2) “operators,” who are defined as persons or entities that operate an Internet web site, online service or mobile application (a) with the knowledge that their business was marketed and will be used for school purposes, and (b) who collect, maintain or use student information. 

As of October 1, 2016, the contracts needed with all such contractors must comply with a number of requirements, including (but not limited to) attestations that (a) student data is not the property or under the control of the contractor, (b) student data may not be used for any purpose not authorized by the contract, (c) the contractor will not retain student data after completing work under the contract (unless a student or parent creates an account for the purpose of storing student-generated content), and (d) the contractor will comply with FERPA (the federal law providing that personally-identifiable student information must generally be maintained as confidential).  Such contracts must also describe how (a) school officials may request the deletion of student data in the possession of the contractor, (b) students or their parents or guardians may review their student data and correct erroneous information, (c) the contractor will comply with its obligation to notify the school district of a breach.  Within five days of executing such a contract, school districts must provide electronic notification to any student and the parent or guardian of the student affected by the contract.  The school district must then post such notice and the contract itself on the district’s website.

The new law includes prohibitions against targeted advertising based on personally-identifiable student information.  Also, there is a significant new requirement that contractors provide notice of a data breach to the school district, no later than thirty days after the breach of “student information,” or sixty days after a breach of directory information, student-generated content, or “student records.”  Within only forty-eight hours of receiving such notice, the school district must provide electronic notification of the breach to the affected students and their parents or guardians, and it must also post notice of the breach on the district website. 

Illustrating the complexity of the law, it is not clear what notification procedures are appropriate for the situation in Nutmeg.  Presumably, school officials would have to notify the contractor of the apparent breach, and after investigation, the contractor would then notify the district of the breach, only then triggering the new statutory duties to notify the students and parents or guardians affected by the breach within forty-eight hours, as well as to post notice of the breach on the district website. 

Finally, the eagerness of the Board members to hear the related expulsion case is concerning.  When hearing expulsion cases, as a matter of due process, board members must decide expulsion cases impartially based on the evidence presented at the hearing.  Prior comments, such as those by Bob, raise serious questions as to impartiality, and those outspoken Board members should sit this one out.

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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