Are You Breaking the Law When You Post Student Photos Online Without Parental Consent?

In May 2016, Education Law Insights published an article discussing student photos taken at school titled “Before You Upload That Student Photo, Ask: What Would FERPA (Have Me) Do?” The article covers a litany of questions and scenarios to think about before posting school photos online, even when those photos are taken by a parent volunteer. FERPA is the Family Educational Rights and Privacy Act and is a Federal law that protects the privacy of student education records.

While this article was written from the perspective of Illinois, and states have different laws (in addition to FERPA), one should question whether any photos taken in school should ever be posted online without parental permission.  Why is this important?  Here are some common sense reasons:

  • When someone is in protective custody or in witness protection, it matters.
  • When families are trying to avoid a stalker, it matters.
  • When families want privacy, and a student is required to go to school and doesn’t want their photos plastered all over the internet, it matters.
  • When that child gets a little older (middle school) and photos are easily available online, it doesn’t make it hard for peers to photoshop and bully the child.

A child cannot escape the school, a child doesn’t have a choice to be there, the sanctity of their privacy in school should not be abused by other students, parents, and schools who don’t have the foresight to consider a student’s privacy.  How will you feel if it was a photo YOU posted that was clipped and edited to bully someone else’s kid?  How would you feel if it was your kid?

For the parent and child it isn’t just about what the law says, it is about what is actually happening.

After reading the Education Law Insights article I have a few questions about what schools do:

1) Does loading photos or videos into third party platforms or into school district owned platforms that spread the data around into more platforms count as “online”?  Because it is “online”, it just might or might not be public. 

My point here is that there are so many ifs and buts that in the end I don’t actually know when something I don’t want collected about my child can or can’t or is or isn’t loaded into a third party system.  A third party system that I might or might not even know exists.  The problem is I don’t know all the third parties with whom the school district has contracts and agreements.  Further, I don’t know what those agreements allow or how well they were written to protect student privacy.  Basically, it seems there is zero control or knowledge (for a parent) over what data is collected, how it is used, and where it is going.

2)  Are school photos considered directory information in your school district?

3) Did you ever receive or can you find a directory information public notice or any form to forbid disclosure of directory information in your county (before disclosure occurs)?  The National Association of Colleges and Employers (NACE) published an article in 2015 that explains:

Directory information can be disclosed provided that the educational institution has given public notice of the type of information to be disclosed, the right of every student to forbid disclosure, and the time period within which the student or parent must act to forbid the disclosure. If a student decides to “opt out” of the disclosure of directory information, the “opt out” continues indefinitely.

An example of notification can be seen at the UCF Registrar’s Office, and what constitutes directory information is clearly defined by University of Central Florida (UCF).  UCF also provides clear instructions for how to restrict release of that directory information.

Does your school district provide you the courtesy of letting you know where your family’s personal data goes when you register a child for school (and what agreements exist to protect that data)?

Schools often provide opt-out forms for photos/videos/etc. but procedures and training seem to be seriously lacking in that arena.  Some teachers seem unaware this is even an issue and video tape children on phones.  Here is an example from CBS News of a Florida parent who claims to have signed a form “specifically prohibiting workers at the day care from taking videos or sharing any photos or video of her child” and yet a video of the emotional child taken at the day care facility went viral and was played on “Jimmy Kimmel Live!”

There are many examples of student photos posted on social media, apparently taken in schools during the Great American Teach-In.  It is unknown if parental permission was either obtained or required but there are a lot of student photos from this event on social media:

Gymnastics&Dance (Mary E Bryant Elementary School in Westchase)

TechData Corporation (Mabry Elementary in South Tampa)

Tampa Bay Rays and here

Twitter photos and videos

What happens when a child does not want to be photographed or video-taped during the Great American Teach-In or other events?  Does that child get awkwardly removed from their class and have to be placed outside of the line of sight of cameras?  That would seem to make a spectacle of the child in favor of the organization.

Students are at school to be educated, not photographed and video-taped.  What educational benefit are children receiving when outside organizations video-tape students?  Are reliable procedures in place at all schools to honor opt-outs?  Schools certainly seem to have the choice to prohibit these activities when they desire, as was illustrated at Wharton High School when “Tampa Bay Times was not allowed inside” for a parent meeting.

Corporations, individuals, and parents should volunteer for activities without turning the event into an opportunity to use school children to market a business, create promotional materials, or post photos of someone else’s child online.  The opportunity to volunteer in public schools should be viewed as a privilege.

It is time to take a look at updating law, enforcing opt-out policies, and educating individuals about the privacy rights students should have in public schools.

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