,,ii #aadth ,,congress #ast ,session ,s4 #acda ,,in ,,the ,,senate ,,of ,,the ,,united ,,states ,may #ad1 #bjae,mr4 ,vitter introduced the following bill2 which was read twice and referred to the ,committee on ,health1 ,education1 ,labor1 and ,pensions ,a ,,bill ,to amend section #ddd of the ,general ,education ,provisions ,act in order to improve the privacy protections available to students and their parents1 and for other purposes4 #a4 ,short title ,this ,act may be cited as the ,student ,privacy ,protection ,act4 #b4 ,defining student data 7a7 ,definition ,section #ddd7;a7 of the ,general ,education ,provisions ,act 7commonly referred to as the ,family ,educational ,rights and ,privacy ,act7 7#bj ,u4,s4,c4 #abcb;g7 is amended-- 7#a7 by striking paragraph 7#d7 and inserting the following3 7#d7 7,a7 ,for the purposes of this section1 the term student data means information about a student collected and maintained by an educational agency or institution1 by a person or third party collecting or maintaining such information through the active intervention1 facilitation1 or authorization of such agency or institution1 or by a person or third party acting for such agency or institution4 7,b7 ,the term student data does not include-- 7i7 records of instructional1 supervisory1 and administrative personnel and educational personnel ancillary thereto which are in the sole possession of the maker thereof and which are not accessible or revealed to any other person except a substitute2 7ii7 records maintained by a law enforcement unit of the educational agency or institution that were created by that law enforcement unit for the purpose of law enforcement2 7iii7 in the case of persons who are employed by an educational agency or institution but who are not in attendance at such agency or institution1 records made and maintained in the normal course of business which relate exclusively to such person in that person's capacity as an employee and are not available for use for any other purpose2 or 7iv7 records on a student who is eighteen years of age or older1 or is attending an institution of postsecondary education1 which are made or maintained by a physician1 psychiatrist1 psychologist1 or other recognized professional or paraprofessional acting in his professional or paraprofessional capacity1 or assisting in that capacity1 and which are made1 maintained1 or used only in connection with the provision of treatment to the student1 and are not available to anyone other than persons providing such treatment1 except that such records can be personally reviewed by a physician or other appropriate professional of the student's choice4 2 and 7#b7 in paragraph 7#e77;,a71 by striking includes the following and inserting consists of only the following4 7b7 ,conforming amendments ,section #ddd of such ,act 7#bj ,u4,s4,c4 #abcb;g71 as amended by subsection 7a71 is further amended-- 7#a7 in subsection 7a7-- 7,a7 in paragraph 7#a7-- 7i7 in subparagraph 7,a71 by striking educational records and inserting student data2 and 7ii7 in subparagraph 7,c77ii71 by striking placed in the education records and inserting obtained2 and 7,b7 in paragraph 7#b7-- 7i7 by striking the records each place the term appears and inserting the data2 and 7ii7 by striking such records each place the term appears and inserting such data2 7#b7 in subsection 7b7-- 7,a7 in paragraph 7#a7-- 7i7 in subparagraph 7,b71 by striking the record each place the term appears and inserting the data2 7ii7 in subparagraph 7,e71 by striking whose records each place the term appears and inserting whose student data2 and 7iii7 in subparagraph 7,l71 by striking such records and inserting such data2 7,b7 in paragraph 7#b77;,a71 by striking records each place the term appears and inserting student data2 and 7,c7 in paragraph 7#d77;,a71 by striking such records and inserting such data2 7#c7 in subsection 7j77#a77;,b71 by striking such records and inserting such student data2 7#d7 by striking education records each place the term appears and inserting student data2 and 7#e7 by striking education record each place the term appears and inserting student data4 #c4 ,release of personally identifiable information ,section #ddd of the ,general ,education ,provisions ,act 7commonly referred to as the ,family ,educational ,rights and ,privacy ,act7 7#bj ,u4,s4,c4 #abcb;g71 as amended by section #b1 is further amended-- 7#a7 in subsection 7b7-- 7,a7 in paragraph 7#a7-- 7i7 in subparagraph 7,a71 by striking other school officials1 including teachers and inserting employees and other school officials1 including teachers1 under the direct control of2 7ii7 in subparagraph 7,c71 by striking authorized representatives of each place the term appears and inserting authorized representatives under the direct control of2 7iii7 by striking subparagraph 7,f72 and 7iv7 by redesignating subparagraphs 7,g7 through 7,k7 as subparagraphs 7,f7 through 7,j71 respectively2 7,b7 in paragraph 7#b7-- 7i7 in the matter preceding subparagraph 7,a71 by striking any personally identifiable information through directory information1 and inserting any student data1 including personally identifiable information 7other than directory information7 that is not first aggregated1 anonymized1 and de-identified2 7ii7 by striking subparagraph 7,a7 and inserting the following3 7,a7 the educational agency or institution meets the requirements of paragraph 7#h7 with respect to the student data1 including providing notice and obtaining parental consent2 or 2 and 7iii7 in subparagraph 7,b71 by striking 7#a77;,j7 and inserting 7#a77;,i72 7,c7 in paragraph 7#c7-- 7i7 by striking authorized representatives of and inserting authorized representatives under the direct control of2 7ii7 by inserting administered by ,state or local public educational agencies or institutions after ,federally-supported education programs2 and 7iii7 by inserting before the period at the end the following3 3 ,provided further1 ,that notice is provided1 and consent is obtained1 from the parents consistent with paragraph 7#h72 7,d7 in paragraph 7#d77;,b7-- 7i7 by inserting and consistent with the requirements of paragraph 7#h7 after student2 7ii7 by inserting or paragraph 7#h7 after paragraph 7#b77;,a72 and 7iii7 by inserting 7as in effect on the day before the date of enactment of the ,student ,privacy ,protection ,act7 after paragraph 7#a77;,f72 7,e7 in paragraph 7#e7-- 7i7 by inserting administered by a ,state or local public educational agency or institution after supported education program2 and 7ii7 by striking the proviso and inserting both provisos2 and 7,f7 by adding at the end the following3 7#g7 ,no appending data 7,a7 ,in general ,no funds provided to the ,department or under any applicable program may be provided to any educational agency or institution that appends any student data with personally identifiable information obtained from ,federal or ,state agencies through data matches4 7,b7 ,federal prohibition ,notwithstanding any other provision of law1 the ,secretary shall not append any student data of a student with personally identifiable information obtained from ,federal or ,state agencies through data matches4 7#h7 ,limitations on third party use ,notwithstanding paragraph 7#a7 or any other provision of this section 7not including paragraph 7#f771 no funds provided to the ,department or under any applicable program may be provided to an educational agency 7including a ,state educational agency7 or institution that allows any third party 7including any contractor or other person acting under direct control of the agency or institution7 to access student data of students1 including personally identifiable information and directory information1 unless-- 7,a7 the agency or institution receives consent from the parents of the student for the student data to be made available to the third party2 7,b7 prior to receiving the consent described in subparagraph 7,a71 the agency or institution provides the parents with notice1 not less than #cj days before the records would be provided to such outside party if consent is obtained1 that informs the parent-- 7i7 of the student data that would be accessed2 7ii7 that the student data will only be made available if the parent consents2 7iii7 that the parent have the ability1 under subsection 7a71 to access the student data of their students held by the agency or institution or outside party1 and a description of the process to make corrections for inaccurate data2 and 7iv7 that the agency or institution and the outside party are liable for any violation of this section and that the remedies described in subsection 7k7 are available2 7,c7 the agency or institution1 and the third party1 have in place methods sufficient to ensure that a reasonable person could not use any of the data provided to determine the identity of the student1 by itself or when combined with other publicly available information2 7,d7 the agency or institution requires that all student data remain the property of the agency or institution and that any student data1 including data made available through the ,internet or data hosted by a third party service provider1 is destroyed when the individual is no longer a student served by the agency or institution2 and 7,e7 the third party agrees1 as a condition of receiving such access1 to be liable for any violation of this section1 including civil liability under subsection 7k74 7#i7 ,no tracking of students 7,a7 ,in general ,no funds provided to the ,department or to an applicable program may be used to track children or for career tracking4 7,b7 ,only aggregate data in longitudinal data systems ,student data shall not be used for or from ,state longitudinal data programs1 including prekindergarten through grade #bj 7,p-#bj7 workforce programs1 unless the student data is first aggregated1 anonymized1 and de-identified4 7,c7 ,definitions ,in this paragraph3 7i7 ,track ,the term track shall mean to collect and maintain records of a student's activities through the student's educational career1 beginning in preschool and including postsecondary education1 and the student's entrance into1 and progression through1 the workforce or the military4 7ii7 ,career tracking ,the term career tracking shall mean any effort to obligate an elementary school or secondary school student to involuntarily select a career1 career interest1 employment goals1 or related job training via any curriculum1 instruction1 employment-related activity1 survey1 test1 assessment1 or data collection4 7#aj7 ,rules of construction 7,a7 ,applicability to ,federal ,government ,nothing in this section shall be construed to allow the ,secretary1 the ,attorney ,general1 or the head of any other ,federal agency to provide any outside party access to student data1 or personally identifiable information in student data1 that has not first been aggregated1 anonymized1 and de-identified4 7,b7 ,no data collection ,nothing in this section shall be construed to authorize the collection1 storage1 sharing1 or use1 in any manner1 of student data1 including personally identifiable information of students1 for the development or improvement of products or services1 unless the student data has first been aggregated1 anonymized1 and de-identified4 7,c7 ,no national database ,nothing in this section shall be construed to authorize the collection1 storage1 sharing1 or use1 in any manner1 of student data1 including personally identifiable information1 to support or inform a national or interstate database of student data or the linking of ,state longitudinal databases1 unless the student data has been aggregated1 anonymized1 and de-identified4 4 #d4 ,requiring parental consent to release records of other students ,section #ddd7;a7 of the ,general ,education ,provisions ,act 7#bj ,u4,s4,c4 #abcb;g7a771 as amended by section #b1 is further amended-- 7#a7 in paragraph 7#a7-- 7,a7 in subparagraph 7,a71 by striking #8#8students who are or have been in attendance at a school of such agency or at such institution1 as the case may be1'' and inserting students for whom the agency or institution maintains student data2 and 7,b7 in subparagraph 7,b71 by inserting 1 or for whom the agency or institution maintains student data before that is subject2 7#b7 in paragraph 7#b71 by striking who are or have been in attendance at a school of such agency or at such institution and inserting for whom the agency or institution maintains student data2 7#c7 in paragraph 7#e77;,b71 by striking attending the institution or agency and inserting for whom the agency or institution maintains student data2 and 7#d7 in paragraph 7#f71 by striking 1 but does not include a person who has not been in attendance at such agency or institution4 #e4 ,remedies ,section #ddd of the ,general ,education ,provisions ,act 7#bj ,u4,s4,c4 #abcb;g71 as amended by sections #b1 #c1 and #d1 is further amended by adding at the end the following3 7k7 ,civil liability 7#a7 ,in general 7,a7 ,agencies1 institutions1 and contractors ,as a condition of receiving any funds provided to the ,department or under any applicable program1 an educational agency or institution1 and any third party that collects1 maintains1 or otherwise obtains access to student data through such agency or institution1 that fails to comply with any requirement imposed under this section with respect to any individual shall be liable to that person in the amount determined under paragraph 7#b74 7,b7 ,federal government liability ,any ,federal agency that fails to comply with any requirement imposed under this section with respect to any individual shall be liable to that person in the amount determined under paragraph 7#b74 7#b7 ,amount of award 7,a7 ,individual action ,in an individual action1 the sum awarded for liability under paragraph 7#a7 is equal to-- 7i7 in the case of a first violation1 an amount of not less than #a1jjj2 7ii7 in the case of a second violation by the same person involving the student data and privacy of the same student1 an amount of not less than than #e1jjj2 and 7iii7 in the case of a third or any subsequent violation by the same person involving the student data and privacy of the same student1 an amount of not less than #aj1jjj4 7,b7 ,individual violation ,for purposes of this subsection1 each violation of this section that involves different student data of an individual1 or a different student1 shall be considered a separate violation4 7#c7 ,costs and attorney fees ,in the case of any successful action to enforce liability under paragraph 7#a71 the defendant shall be liable for the costs of the action and reasonable attorney fees as determined by the court4 4 #f4 ,prohibition on psychological testing ,section #dde of the ,general ,education ,provisions ,act 7#bj ,u4,s4,c4 #abcb;h7 is amended-- 7#a7 by redesignating subsections 7d7 through 7f7 as subsections 7f7 through 7h71 respectively2 7#b7 by inserting after subsection 7c7 the following3 7d7 ,prohibition on psychological testing 7#a7 ,definitions ,in this section3 7,a7 ,affective computing ,the term affective computing means systems and devices that can or attempt to recognize1 interpret1 process1 or simulate aspects of human feelings or emotions4 7,b7 ,interpersonal resources or interpersonal skills ,the term interpersonal resources or interpersonal skills means non-cognitive emotional and psychological characteristics and attributes and skills used to manage relationships and interactions between or among individuals4 7,c7 ,intrapersonal resources or intrapersonal skills ,the term intrapersonal resources or intrapersonal skills means non-cognitive emotional and psychological characteristics and attributes used to manage emotions and attitudes within an individual4 7,d7 ,predictive modeling ,the term predictive modeling means the use of educational data-mining methods to make predictions about future behaviors or performance4 7,e7 ,process ,the term process or processing means to use1 access1 manipulate1 scan1 modify1 transform1 disclose1 store1 transmit1 transfer1 retain1 aggregate1 or dispose of student or teacher data4 7,f7 ,psychological resources ,the term psychological resources means non-cognitive1 emotional characteristics1 attributes1 and skills1 including mindsets1 learning strategies1 and effortful control1 used by an individual to address or manage various life situations4 7#b7 ,in general ,notwithstanding any other provision of law1 no funds provided to the ,department or ,federal funds provided under any applicable program shall be spent to support any survey or academic assessment allowing any of the following types of data collection via assessments or any other means1 including digitally3 7,a7 ,any data collected via affective computing1 including analysis of facial expressions1 ,,eeg brain wave patterns1 skin conductance1 galvanic skin response1 heart-rate variability1 pulse1 blood volume1 posture1 and eye-tracking4 7,b7 ,any data 7including any resulting from national or ,state assessments7 that measure psychological resources1 mindsets1 learning strategies1 effortful control1 attributes1 dispositions1 social skills1 attitudes1 intrapersonal resources1 or any other type of social1 emotional1 or psychological parameter4 7,c7 ,any data collected through predictive modeling to be used to detect behaviors1 beliefs1 or value systems1 or for predicting or forecasting student outcomes4 7,d7 ,any type of psychological data1 including assessment of non-cognitive skills or attributes1 psychological resources1 mindsets1 learning strategies1 effortful control1 attitudes1 dispositions1 social skills1 or other interpersonal or intrapersonal resources collected via any national or ,state student assessment4 7#c7 ,special rule ,paragraph 7#b7 shall not apply to an applicable program carried out or funded under the ,individuals with ,disabilities ,education ,act if the data collection is required under such ,act4 7#d7 ,no national assessment using psychological data ,no funds provided to the ,department or to an applicable program may be used to pilot test1 field test1 implement1 administer1 or distribute in any way any federally sponsored national assessment collecting any psychological data or any federally sponsored research on social-emotional data in education4 7e7 ,video monitoring and computer surveillance protections 7#a7 ,protections for video monitoring 7,a7 ,elementary schools and secondary schools ,no funds provided to the ,department or under any applicable program shall be made available to any public elementary school or secondary school served by an educational agency receiving funds under any eligible program that conducts video monitoring of classrooms in the school1 for any purpose1 including for teacher evaluation1 without the approval of the local educational agency after a public hearing and the written consent of the teacher and the parents of all students in the classroom4 7,b7 ,other agencies and institutions ,no funds provided to the ,department or under any applicable program shall be made available to any educational agency or institution not covered under subparagraph 7,a7 that conducts video monitoring of classrooms in a school or institution1 for any purpose1 including for teacher evaluation1 without a public hearing and the written consent of the teacher1 and of the parents of all students in the classroom4 7#b7 ,protections for computer camera surveillance 7,a7 ,elementary schools and secondary schools ,no funds provided to the ,department under any applicable program shall be made available to any public elementary school or secondary school that supplies1 through the school to a teacher or student1 a computing device on which remote camera surveillance software has been installed1 without first obtaining the approval of the local educational agency after a public hearing4 ,any such elementary school or secondary school that provides computing devices to teachers or students shall adopt a policy prohibiting the use of remote camera surveillance software on a school supplied computing device without the written consent of the teacher and the parent of each affected student4 7,b7 ,other agencies and institutions ,no funds under any applicable program shall be made available to any educational agency or institution not covered under subparagraph 7,a7 that supplies1 through the school to a student or teacher1 a computing device on which remote camera surveillance software has been installed without first providing a public hearing and adopting a policy prohibiting the use of remote camera surveillance software on an institution-supplied computing device without the written consent of the teacher and the parent of each affected student4 7#c7 ,permission and consent ,for the purposes of this subsection1 whenever a student has attained eighteen years of age1 or is attending an institution of postsecondary education1 the permission or consent required of and the rights accorded to the parents of the student shall thereafter only be required of and accorded to the student4 7#d7 ,definitions ,in this subsection1 the term educational agency or institution has the meaning given the term in section #ddd4 4 #g4 ,prohibition on collecting certain private information ,section #dde of the ,general ,education ,provisions ,act 7#bj ,u4,s4,c4 #abcb;h7 is amended-- 7#a7 by striking subsection 7b7 and inserting the following3 7b7 ,neither the ,secretary nor any educational agency or institution receiving assistance under any applicable program shall administer any student survey1 assessment1 analysis1 evaluation1 or similar instrument that solicits information about the student or the student's family concerning the following3 7#a7 ,political affiliations or beliefs4 7#b7 ,mental or psychological problems1 psychological resources1 mindsets1 learning strategies1 effortful control1 attributes1 dispositions1 social skills1 attitudes1 or intrapersonal resources 7as defined in subsection 7d77#a774 7#c7 ,sexual behavior or attitudes4 7#d7 ,illegal1 antisocial1 self-incriminating1 or demeaning behavior4 7#e7 ,critical appraisals of another individual with whom a student has a close relationship4 7#f7 ,legally recognized privileged or analogous relationships1 such as those with a lawyer1 physician1 or member of the clergy4 7#g7 ,religious practices1 affiliations1 or beliefs4 7#h7 ,personal or family gun ownership4 7#i7 ,income or other income-related information except that required by law to determine eligibility to participate in or receive financial assistance under a program4 2 and 7#b7 in subsection7c77#a7-- 7,a7 by striking subparagraph 7,b72 7,b7 by redesignating subparagraphs 7,c7 through 7,f7 as subparagraphs 7,b7 through 7,e71 respectively2 and 7,c7 in subparagraph 7,e77i71 as redesignated by subparagraph 7,b71 by striking subparagraph 7,e7 and inserting subparagraph 7,d74 #h4 ,severability ,if any provision of this ,act or an amendment made by this ,act1 or the application of the provision to any person or circumstance1 is held to be unconstitutional1 the remainder of this ,act and the amendments made by this ,act1 and the application of the provisions of this ,act and the amendments made by this ,act to any other person or circumstance1 shall not be affected thereby4