Combine several hotly contested elections for state office, traditional voter registration and mobilization tactics, a progressive special interest group and the use of an existing law to gain access to tens of thousands of individual student phone numbers and email addresses and you get a mini-firestorm of debate over personal privacy rights.
As reported recently in the The Roanoke Times, a progressive special interest group requested student contact information from all of Virginia’s publicly supported colleges and universities. According to The Roanoke Times, 18 public institutions of higher education produced the requested information. That information was then used by various political campaigns to contact students about registering to vote. Presumably, campaigns in possession of the information will use it to further in their voter identification and political advocacy efforts.
Two Virginia legislators recently announced they will introduce legislation to make it harder for third-parties to obtain such information in the future.
Unless a student affirmatively “opts-out,” The Family Education Rights and Privacy Act of 1974 does not prohibit universities and colleges from releasing student directory information, provided proper notice was given to the student. Interestingly, current Virginia law prohibits public institutions of higher education from selling a student’s personal information. See Va. Code Ann. § 23.1-405(C). The statute delineates personal information as name, address, phone number and email address. Id. While Virginia law prohibits the selling of such information, it does not explicitly prohibit releasing the information through Virginia’s Freedom of Information Act. While some may argue the information is a “scholastic record” under the Virginia Freedom of Information Act, which would have allowed the schools to withhold the information, 18 public colleges and universities took a different view.
Because of the requests for student contact information during this election cycle, when the Virginia General Assembly convenes in January, it will likely have several pieces of legislation related to student privacy to consider. According to a press release issued by the Virginia House Republican Caucus, the legislation proposed by the two Republican legislators will “prohibit the release of student directory data to third party groups unless the student expressly authorizes such release in writing, similar to how health privacy laws operate.” Basically, the proposed legislation would change the default from “opt-out” or the information is released to “opt-in” in order to have your information released to third parties.
It will be interesting to see how the legislators who want to prohibit the release of this information will distinguish why this type of directory information is different and should be protected in a way that is different from information about other adults of a similar age. The contact information of a person who is the same age as those enrolled in a university but who is not enrolled in school is often publicly available through a variety of available databases, including a local phone directory maintained by the phone company. A special interest group can call through those publicly available numbers just as the same as the information at issue in this situation. In some instances, those individuals have the choice to “opt-out” of having their phone numbers listed in a public directory, much like students today can “opt-out” of a student directory at school. Granted, the work of obtaining such information is much easier in the student directory context if you can make one request of a school and obtain all of the contact information, but it does raise the question in the context of considering the proposed legislation – if obtaining this information in the student context is an invasion of privacy and should be treated differently, why can’t the same be said in non-academic contexts?
As with most legislation, the devil is always in the details and in the background is the lurking presence of unintended consequences and unexpected precedents.