Staying Well Grounded While Computing in the Clouds

Lozano Smith Client News Brief
July 2014
Number 32

Before leaping into the technology cloud, taking a moment to look for the legal pitfalls really pays off. As cloud computing has grown, school districts have increasingly had to weigh the convenience of the new technologies against the potential challenges that come from sending confidential district information to third parties for cloud storage. Third party vendors often obtain extensive access to the district's technology systems and student and employee information. This raises privacy concerns and issues concerning compliance with the Education Code and the Family Educational Rights and Privacy Act (FERPA) as well as state law. Parents and educators are often unaware of how this information is used, the reasons why such information is being collected or that it is being collected at all, and by whom. These issues are often overlooked in "boilerplate" contracts prepared by the cloud service providers.

Cloud computing is only one of many difficult legal issues that school districts face regarding technology. For example, companies, big and small, are racing to provide school districts with the latest education "apps," tablets, websites, reminder services, virtual classrooms and chat rooms. These innovative tools are being developed for the classroom, district office and board room at a rapid pace, while the law on these questions has not developed as quickly. So how do these technologies fit with existing laws regarding privacy, student records, social media, open meetings, public records, employment issues, litigation and civil liberties? School districts increasingly must consider how these technology issues may create legal problems. Some of the questions that should be asked include:
  1. Are students and district staff required to "agree" to a user agreement? These agreements are also known as "click-wrap agreements," and often pop-up in a window requiring users to click a box indicating that the user has read, and agreed to be bound by, a lengthy set of terms. Such "click-wrap agreements" are often non-negotiable and difficult to understand for the average user. Do these types of "click-wrap agreements" need board approval?

  2. Will the school district provide the vendor with access to confidential student or employee information? If so, does the particular arrangement comply with FERPA and state law (Ed. Code § 49073, et seq.)?

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As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.