Privacy Issues and Remote Learning: What Educational Institutions Need to Consider

You have to give COVID-19 credit where credit is due: it has forced us all to be adaptable. Case in point: educational institutions. No matter what age their students are, educational institutions have had to pivot and learn how to teach students remotely. Amongst the many new ways education has evolved, day to day life for a teacher now involves planning online lessons through video and posting notes on online platforms. Gone are the days when your homework assignments appeared on a chalkboard limited to just the curious eyes of the students in the physical classroom.

Whenever we talk about activities taking place online, we have to consider the privacy implications. I’m sorry, I know you hate me for bringing it up. However, it is imperative. We may be in the middle of a pandemic but that is no reason to think that state and federal laws have been suspended. Are there privacy laws that specifically relate to remote learning? What do we need to be concerned about?

The California Consumer Privacy Act (CCPA) is the first to spring to mind if only because it is the most expansive state law dealing with the regulation and enforcement of use of personal information. You better be careful if you are collecting information from kids under a certain age without consent in California or are a business located in the state doing the collecting (whether from the child or the parent depending on the exact age) particularly if you think you are going to sell that information. Most schools might avoid the grips of the CCPA as it doesn’t apply to non-profits. However, there might be some private organizations that are large enough to fall within the gray area regarding the other requirements (i.e. revenue and data amount). 

You aren’t located in California, you say? I get it but whether or not a specific state law applies should hardly be the point! In a perfect world, all educational institutions would be focused on protecting their students’ personal information and making sure all of their activities are following best practices. What are some of these best practices? I AM SO GLAD YOU ASKED!

1.     Consider the vendors you are using to assist in remote learning and really take a look at those agreements. I know it seems laborious, but you need to actually read those Terms and Conditions that the vendor requires you to click acceptance to. There could be something shady there and trust me, you don’t want to be the last to know.

2.     You should think about the vendor’s privacy policies. The Zoom hacks make it clear that even the largest vendor can fall short in protecting your information/preventing a cybersecurity event. Privacy policies aren’t the most interesting read so if you are unsure, reach out to an attorney. They can alert you to any red flags.

3.     Think about what data these vendors are collecting and for what purpose. Do they really need information relating to children under a certain age and if so, shouldn’t a parent need to consent?

When all else fails, use common sense! If a vendor seems disinterested in providing you information or seems to have flimsy safeguards in place regarding security and data collection/processing, kick them to the curb. While we will of course return to normal eventually, remote learning likely isn’t going to completely disappear. Knowing what should make your spider sense tingle will enable your educational institution to make smart decisions regarding who to give business to and knowing is half the battle!

Namaste or How I Learned to Stop Worrying and Love Yoga During Quarantine

I have always been interested in yoga as a concept. The spirituality. The letting go and giving in to your breathe. The health benefits. The mat with a lotus on it. The Lululemon. In my mind, contorting one’s self into a pretzel seemed to denote some sort of status. “My name is Dorianne Van Dyke and I do yoga” would serve as code for “I am someone with a slightly curated Instagram that enjoys Diptyque candles and oat milk”. In essence, yoga would make me a millenial with “their life together”. 

 

Yoga, in practice, was another thing entirely. First and foremost, I AM NOT FLEXIBLE. Touching my toes is an act of pure torture and if ever there were a reminder of my body/flesh prison slowly aging, it is my pitiful attempt at shifting into extended triangle pose. I have all the elegance of Sandra Bullock when she first attempts to walk in heels in “Miss Congeniality”. She is beauty and she is grace. She is Miss United States.  Secondly, I loathe mental discomfort almost more than physical. Bobbling around in tree pose, in my head I keep asking “it is over?” As if hearing my inner my thoughts, the instructor always replies with “hold it”. Every second feels like an hour. Some people are better at relaxing and being in the moment. I am not one of those people. Last but certainly not least, I tend to lose interest in things that I am naturally not good at. If it doesn’t come easy, it likely isn’t going to come at all. I count failed attempts at learning how to ice skate and how to play the piano amongst the many things that immediately discouraged me. I have plenty of things I can’t do: I don’t need to be reminded of it in my spare time. 

 

So why then did I decide to start practicing yoga during the quarantine?

 

To be present. 

 

Coronavirus has created a state of constant uncertainty. If you are anything like me, you operate best with facts. Since the beginning of shelter in place orders, I have stated again and again that I would feel more relaxed if I just knew when everything would be over. When we would have a treatment. When we would have a vaccine. Several months later, we are no closer to answering these questions and I wasn’t getting any more zen. In fact, my anxiousness was increasing and my patience was almost non-existent.

 

Throwing a yoga mat down has brought me a sense of peace that I never imagined. In those moments where I am holding poses that I once found awful, I am present with my mind and body. I have no option but to breathe and let go of the lingering thoughts that have been traveling through my mind a million miles a minute. There might be some who are better mental multitaskers but I find it impossible to balance on one foot while also worrying about my taxes, when my office is reopening and who is going to win RuPaul’s Drag Race All-Stars. Nope. All of my attention must be focused on not doing my best little teapot imitation. It is a reassuring and calming feeling. I have also taken to repeating mantras. Saying a short phrase over and over assists in grounding me in the now. 

 

Yoga always had the ability to bring me the calmness and ability to cease my need to control that it had delivered to so many before me.  It just took a global pandemic for me to allow it. 

 

 

Politicians & Section 230: A Love/Hate Relationship

Many moons ago, before making the transition to a more IP and privacy focused career, I was a staff attorney at the Media Law Resource Center. Our membership consisting of content providers and the law firms that represented them, we spent a lot of time tracking media law issues and matters of interest for our members. Section 230 was always a hot topic. I had all but forgotten about the protections afforded by Section 230 until it started flying out of the mouth of politicians in the past few months.

For those unfamiliar with Section 230 of the Communications Decency Act, I have highlighted a few points below for relevance.

· Section 230 does two main things. It states that websites aren’t liable for third-party content and that websites don’t need to filter objectionable content. There are statutory exceptions for IP, federal criminal prosecutions, ECPA, and FOSTA.

· Section 230 doesn’t distinguish between “platforms” and “publishers.” Both equally qualify for Section 230 protection for third-party content.

Section 230 is important because it essentially stands in as an extension of the First Amendment, ensuring free speech for internet companies and ensuring that they won’t be unnecessarily liable for third-party content. Without Section 230, it is hard to imagine the rise of social media or many or the review sites we often utilize today. How would Facebook, Reddit and Yelp have survived if they had needed to personally defend and be held liable for every random post on their site?

President Donald Trump recently signed Executive Order 1392 or “Preventing Online Censorship“ which directly targets Section 230. As Eric Goldman put it “the EO doesn’t seek to prevent online censorship, it seeks to impose it”. Joe Biden has also spoke at length about his dislike of the protections afforded by Section 230 and stated “Section 230 should be revoked, immediately.” However, somewhere along the line these two and their friends in Congress became confused as to the entire reasoning behind the protection.

The point of Section 230 isn’t to weaponize Internet giants like Facebook and Twitter, allowing them to post whatever their users provide without filter. The point is to pick up where the First Amendment left off, providing broader speech rights and insulating online organizations that fit the profile from lawsuits that should truly be aimed at someone else. Eric Goldman does a better job of explaining this than I ever could. You can view his thoughts here.

It is a given that not every site that gets Section 230 protection is warm and rosy. There are discussions about narrowing the immunity of Section 230 potentially carving out truly threatening and problematic language. There is no doubt that no law is perfect and often we need to revisit and revise as individual action and use/abuse evolves. The important thing, however, is that we don’t rush to repealing or revoking something that has done a lot of good. Going forward, it might make sense to allow those who truly understand Section 230 to craft and sponsor any changes in legislation lest we doom ourselves in the technology space.

Clearview AI Used to Identify Protestors?

Ars Technica had an interesting article today about Sen. Edward Market (D-Mass) demanding to know if law enforcement agencies are working with Clearview AI to identity protestors based on facial recognition software. Buzzfeed had reported on a number of police departments near Minneapolis working with Clearview AI to identify individuals based on facial recognition and license plate tracking.

Using biometric information data gives me the chills.

Introduction

Who is Dorianne Van Dyke? That is usually the first question someone asks themselves when they visit an individual's blog. Well, I am not sure anyone knows who anyone is in the philosophical sense (joke), but I can shed a little light on who I am professionally/personally and what I would like to achieve with this blog.

I am an attorney in NYC. I graduated from NYU and New York Law School. Aside from my day job, which takes up a bit of my time, I am also very interested in the arts and an avid reader.  I am a member of the Apollo Circle at the MET and a Tilden Conservator at the NYPL. I am also currently working on a women's fiction novel now that is a fish out of water story. I love a good trope. (If you are looking for a writing class, I highly recommend Gotham).