It’s Springtime in Chicago again, which means you can count on two things–complaints about the lingering cold weather and the Annual Illinois ASBO Conference, which is going on now in Schaumburg, Illinois. I was lucky enough to speak at the conference in Schaumburg yesterday on a couple of topics, one of which was Technology and School Law: Why Ignorance Is Not Bliss. In that talk, the issue of posting student photographs online led to a lively discussion. As the article “Posting Pictures to a School Website” explains, digital cameras and camera phones allow us to take photos and post them online much faster than ever before. Once there, photographs are there to stay, even if someone tries to erase them, and are simple to locate. So it’s especially important to think (before you post!) whether doing so would violate federal and state student records laws. Here are some of the key takeaways we discussed:
- Before posting a photograph online, a school employee or agent (like a parent volunteer or student working on a school-related project) should always consider whether doing so would violate laws protecting student/educational records. Both the federal Family Educational Rights and Privacy Act (FERPA) and related state laws, such as the Illinois School Student Records Act (ISSRA), generally allow a parent/guardian (or student if over the age of 18) to control whether third parties outside of the school environment can see a student’s records.
- There are two essential questions to ask in this circumstance: (1) Is a photograph a student/educational record under these laws? and (2) If it is, does an exception allow its publication without the express, written consent of the student’s parent/guardian (or the student if over age 18)? If a photograph is a student record and there is no exception, it should not be published or shared with any third party without the required consent, including posting online.
- If the photograph is not a close up of the student and the student is not named along with it, is it even a student record? We discussed that there are some valid arguments that can be made that a group shot in which a student cannot be easily identified is not a student record. We don’t know the definitive answer to this question, but I know as a practical matter many schools assume they are not, and post such photographs without any notice to or consent by parents/guardians, and I think there are strong legal arguments to support that view.
- If the photograph is clearly of the student but doesn’t name the student, is that a student record? Again, reasonable minds can disagree on this point. The more cautious, conservative approach is to treat such photographs as student records, although again there are good arguments both ways.
- If a photograph is a student record, some ask, why not just get consent? Well any of us who work with social media know that the beauty of the medium is its speed. If you have to obtain express consent after snapping a photo but before posting it, the logistical hurdle might be insurmountable in some cases, but at the very least will slow things down. Will people still care about that photo from today’s activity later this week? If you have to get consent every time, it may grind your social media and other online presence to a halt.
- What about directory information? Under FERPA, photographs can be treated as directory information, meaning that as long as parents/guardians (and students over age 18) are given general notice that photographs might be published and an opportunity to opt out, photographs of the student can be posted without express consent. State law can be tricker, but assuming your state law allows you to consider a photograph as directory information, does this exception save the day? The answer is it can, with proper notice and training to your staff and agents. Each time one of those people posts a photograph that identifies a student, they should consult the directory information list to make sure that a student identified in the photograph is not on the opt out list. Remember, there may be special issues with students with nicknames and student with special situations, such as transgender students and students in protective custody who might not want to (or by law should not) be included in a photograph open to the general public. But otherwise, if a student is not on the opt out list, and the photograph is directory information, your student records concerns should be addressed.
- What if the student is engaging in an activity open to the general public? Again, the law is unclear here, but is it really practical for the lead of the school play or the student walking across the graduation stage to opt out of being in photographs or videos of the event? At the very least, schools should make explicitly clear to students before they engage in such events or activities if photographs, videos, or other recordings will be taken and shared without regard for any opt outs on directory information lists.
This was just one of many topics we discussed about posting photographs. To mitigate all of the pitfalls related to posting student photographs online, school officials should have a conscious plan for what rules employees and agents of the school must follow when posting photographs of students online, and take steps to ensure that that plan is followed closely.