EdLaw
Vermont — Student Privacy (9 V.S.A. §§ 2443–2443f)
Subchapter 3A (Student Privacy) of chapter 62 (Protection of Personal Information) of Title 9 in full, added by 2019, No. 89 (Adj. Sess.), § 4: definitions (§ 2443), the operator prohibitions (§ 2443a), operator duties (§ 2443b), permitted uses and disclosures (§§ 2443c, 2443d), applicability (§ 2443e) and enforcement (§ 2443f).
9 V.S.A. § 2443. Definitions
As used in this subchapter:
- (1) “Covered information” means personal information or material, or information that is linked to personal information or material, in any media or format that is:
- (A)(i) not publicly available; or
- (ii) made publicly available pursuant to the federal Family Educational and Rights and Privacy Act; and
- (B)(i) created by or provided to an operator by a student or the student’s parent or legal guardian in the course of the student’s, parent’s, or legal guardian’s use of the operator’s site, service, or application for PreK-12 school purposes;
- (ii) created by or provided to an operator by an employee or agent of a school or school district for PreK-12 school purposes; or
- (iii) gathered by an operator through the operation of its site, service, or application for PreK-12 school purposes and personally identifies a student, including information in the student’s education record or electronic mail, first and last name, home address, telephone number, electronic mail address or other information that allows physical or online contact, discipline records, test results, special education data, juvenile dependency records, grades, evaluations, criminal records, medical records, health records, Social Security number, biometric information, disability status, socioeconomic information, food purchases, political affiliations, religious information, text messages, documents, student identifiers, search activity, photos, voice recordings, or geolocation information.
- (A)(i) not publicly available; or
- (2) “Operator” means, to the extent that an entity is operating in this capacity, the operator of an Internet website, online service, online application, or mobile application with actual knowledge that the site, service, or application is used primarily for PreK-12 school purposes and was designed and marketed for PreK-12 school purposes.
- (3) “PreK-12 school purposes” means purposes that are directed by or that customarily take place at the direction of a school, teacher, or school district; aid in the administration of school activities, including instruction in the classroom or at home, administrative activities, and collaboration between students, school personnel, or parents; or are otherwise for the use and benefit of the school.
- (4) “School” means:
- (A) a public or private preschool, kindergarten, elementary or secondary educational institution, vocational school, special educational agency or institution; and
- (B) a person, agency, or institution that maintains school student records from more than one of the entities described in subdivision (6)(A) of this section.
- (5) “Targeted advertising” means presenting advertisements to a student where the advertisement is selected based on information obtained or inferred over time from that student’s online behavior, usage of applications, or covered information. The term does not include advertising to a student at an online location based upon that student’s current visit to that location or in response to that student’s request for information or feedback, without the retention of that student’s online activities or requests over time for the purpose in whole or in part of targeting subsequent ads.
(Added 2019, No. 89 (Adj. Sess.), § 4.)
9 V.S.A. § 2443a. Operator prohibitions
- (a) An operator shall not knowingly do any of the following with respect to its site, service, or application:
- (1) Engage in targeted advertising on the operator’s site, service, or application or target advertising on any other site, service, or application if the targeting of the advertising is based on any information, including covered information and persistent unique identifiers, that the operator has acquired because of the use of that operator’s site, service, or application for PreK-12 school purposes.
- (2) Use information, including a persistent unique identifier, that is created or gathered by the operator’s site, service, or application to amass a profile about a student, except in furtherance of PreK-12 school purposes. “Amass a profile” does not include the collection and retention of account information that remains under the control of the student, the student’s parent or legal guardian, or the school.
- (3) Sell, barter, or rent a student’s information, including covered information. This subdivision (3) does not apply to the purchase, merger, or other type of acquisition of an operator by another entity if the operator or successor entity complies with this subchapter regarding previously acquired student information.
- (4) Except as otherwise provided in section 2443c of this title, disclose covered information, unless the disclosure is made for one or more of the following purposes and is proportionate to the identifiable information necessary to accomplish the purpose:
- (A) to further the PreK-12 school purposes of the site, service, or application, provided:
- (i) the recipient of the covered information does not further disclose the information except to allow or improve operability and functionality of the operator’s site, service, or application; and
- (ii) the covered information is not used for a purpose inconsistent with this subchapter;
- (B) to ensure legal and regulatory compliance or take precautions against liability;
- (C) to respond to judicial process;
- (D) to protect the safety or integrity of users of the site or others or the security of the site, service, or application;
- (E) for a school, educational, or employment purpose requested by the student or the student’s parent or legal guardian, provided that the information is not used or further disclosed for any other purpose; or
- (F) to a third party if the operator contractually prohibits the third party from using any covered information for any purpose other than providing the contracted service to or on behalf of the operator, prohibits the third party from disclosing any covered information provided by the operator to subsequent third parties, and requires the third party to implement and maintain reasonable security procedures and practices.
- (A) to further the PreK-12 school purposes of the site, service, or application, provided:
- (b) This section does not prohibit an operator’s use of information for maintaining, developing, supporting, improving, or diagnosing the operator’s site, service, or application.
(Added 2019, No. 89 (Adj. Sess.), § 4.)
9 V.S.A. § 2443b. Operator duties
An operator shall:
- (1) implement and maintain reasonable security procedures and practices appropriate to the nature of the covered information and designed to protect that covered information from unauthorized access, destruction, use, modification, or disclosure;
- (2) delete, within a reasonable time period and to the extent practicable, a student’s covered information if the school or school district requests deletion of covered information under the control of the school or school district, unless a student or his or her parent or legal guardian consents to the maintenance of the covered information; and
- (3) publicly disclose and provide the school with material information about its collection, use, and disclosure of covered information, including publishing a term of service agreement, privacy policy, or similar document.
(Added 2019, No. 89 (Adj. Sess.), § 4.)
9 V.S.A. § 2443c. Permissive use or disclosure
An operator may use or disclose covered information of a student under the following circumstances:
- (1) if other provisions of federal or State law require the operator to disclose the information and the operator complies with the requirements of federal and State law in protecting and disclosing that information;
- (2) for legitimate research purposes as required by State or federal law and subject to the restrictions under applicable State and federal law or as allowed by State or federal law and under the direction of a school, school district, or the State Board of Education if the covered information is not used for advertising or to amass a profile on the student for purposes other than for PreK-12 school purposes; and
- (3) disclosure to a State or local educational agency, including schools and school districts, for PreK-12 school purposes as permitted by State or federal law.
(Added 2019, No. 89 (Adj. Sess.), § 4.)
9 V.S.A. § 2443d. Operator actions that are not prohibited
This subchapter does not prohibit an operator from doing any of the following:
- (1) using covered information to improve educational products if that information is not associated with an identified student within the operator’s site, service, or application or other sites, services, or applications owned by the operator;
- (2) using covered information that is not associated with an identified student to demonstrate the effectiveness of the operator’s products or services, including in their marketing;
- (3) sharing covered information that is not associated with an identified student for the development and improvement of educational sites, services, or applications;
- (4) using recommendation engines to recommend to a student either of the following:
- (A) additional content relating to an educational, other learning, or employment opportunity purpose within an online site, service, or application if the recommendation is not determined in whole or in part by payment or other consideration from a third party; or
- (B) additional services relating to an educational, other learning, or employment opportunity purpose within an online site, service, or application if the recommendation is not determined in whole or in part by payment or other consideration from a third party; and
- (5) responding to a student’s request for information or for feedback without the information or response being determined in whole or in part by payment or other consideration from a third party.
(Added 2019, No. 89 (Adj. Sess.), § 4.)
9 V.S.A. § 2443e. Applicability
This subchapter does not:
- (1) limit the authority of a law enforcement agency to obtain any content or information from an operator as authorized by law or under a court order;
- (2) limit the ability of an operator to use student data, including covered information, for adaptive learning or customized student learning purposes;
- (3) apply to general audience Internet websites, general audience online services, general audience online applications, or general audience mobile applications, even if login credentials created for an operator’s site, service, or application may be used to access those general audience sites, services, or applications;
- (4) limit service providers from providing Internet connectivity to schools or students and their families;
- (5) prohibit an operator of an Internet website, online service, online application, or mobile application from marketing educational products directly to parents if the marketing did not result from the use of covered information obtained by the operator through the provision of services covered under this subchapter;
- (6) impose a duty upon a provider of an electronic store, gateway, marketplace, or other means of purchasing or downloading software or applications to review or enforce compliance with this subchapter on those applications or software;
- (7) impose a duty upon a provider of an interactive computer service, as defined in 47 U.S.C. § 230, to review or enforce compliance with this subchapter by third-party content providers;
- (8) prohibit students from downloading, exporting, transferring, saving, or maintaining their own student-created data or documents; or
- (9) supersede the federal Family Educational Rights and Privacy Act or rules adopted pursuant to that Act.
(Added 2019, No. 89 (Adj. Sess.), § 4.)
9 V.S.A. § 2443f. Enforcement
A person who violates a provision of this chapter commits an unfair and deceptive act in commerce in violation of section 2453 of this title.
(Added 2019, No. 89 (Adj. Sess.), § 4.)