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Consider a situation where some students are required to turn on the camera during online classes - my question is:

If a student's facial image is collected during online classes, is parental consent required prior to collecting it in the United States?

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  • (1/3) This is an important question, particularly during the pandemic. Unfortunately, it is very poorly worded. Not all students are children, and perhaps more importantly, not all children are students (not all students have the luxury of a private space during their online classes). Commented Aug 16, 2022 at 14:39
  • (2/3) At least in my jurisdiction (Australia), there were some cases where students could attend school (useful if home was unsafe or their guardians were essential workers), but their classes would still be online. This opens the possibility of the school taking actual photos of them, as opposed to recording their camera feeds, which seems to be what this question is about. The question body refers to ‘parental consent’. We might reasonably assume this applies to other guardians too, but what about consent of the student, especially where the student is over the age of majority? Commented Aug 16, 2022 at 14:39
  • (3/3) The question body clearly says ‘United States’, yet the question is also tagged european-union. Commented Aug 16, 2022 at 14:39
  • Can you say how "online" matters here? How are "online classes" different from "real" classes? Commented Aug 26, 2022 at 21:00

1 Answer 1

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There is no generally applicable law that that effect in the United States, although, of course, there are laws in fifty different states, plus the District of Columbia and U.S. territories, that I have not comprehensively reviewed, and particular school districts might have policies of their own.

Such a picture would probably be considered an "educational record" for purposes of a federal law known as the Federal Educational Rights and Privacy Act (FERPA) (the definition is set forth below), so sharing this collected picture outside the school might pose an issue in some circumstances as a violation of federal educational privacy laws. But merely collecting images during class and using them for internal purposes of the school would not violate these laws.

Also, there is no private cause of action (right to sue) under FERPA and, in 2002, the U.S. Supreme Court ruled in Gonzaga University v. John Doe that students and parents may not sue for damages under 42 USC § 1983 to enforce provisions of FERPA. As an FAQ on the subject explains:

Q. What penalties apply to the misuse or improper disclosure of confidential information?

A. The penalty for noncompliance with the Family Educational Rights and Privacy Act (FERPA) and Protection of Pupil Rights Amendment (PPRA) can be withdrawal of U.S. Department of Education funds from the institution or agency that has violated the law. This applies to schools, school districts, and state education agencies. The Family Policy Compliance Office of the U.S. Department of Education, charged with reviewing and investigating complaints, seeks to promote voluntary compliance with the law. A third party who improperly discloses personally identifiable information from student records can be prohibited from receiving access to records at the education agency or institution for at least 5 years. State laws on privacy may also apply penalties. . . .

Q. What are the consequences of a third party’s misuse of education records?

A. School officials must inform third parties receiving information, as allowed under FERPA, of the requirements concerning redisclosure of information. If a third party is found to have improperly redisclosed personally identifiable information from education records, the school may not allow that third party access to information for at least 5 years.

If the school releases these records to third-parties as a matter of policy, without parental consent, at most, parents might either seek prospective injunctive relief barring the school from engaging in that conduct in the future in a declaration that the policy violates FERPA, or make a complaint to the U.S. Department of Education.

An educational records are defined for purposes of FERPA (paraphrasing) as follows:

FERPA Defines an Education Record

Education records include a range of information about a student that is maintained in schools in any recorded way, such as handwriting, print, computer media, video or audio tape, film, microfilm, and microfiche. Examples are:

  • Date and place of birth, parent(s) and/or guardian addresses, and where parents can be contacted in emergencies;

  • Grades, test scores, courses taken, academic specializations and activities, and official letters regarding a student's status in school;

  • Special education records;

  • Disciplinary records;

  • Medical and health records that the school creates or collects and maintains;

  • Documentation of attendance, schools attended, courses taken, awards conferred, and degrees earned;

  • Personal information such as a student's identification code, social security number, picture, or other information that would make it easy to identify or locate a student.

Personal notes made by teachers and other school officials that are not shared with others are not considered education records. Additionally, law enforcement records created and maintained by a school or district's law enforcement unit are not education records.

Part of the education record, known as directory information, includes personal information about a student that can be made public according to a school system's student records policy. Directory information may include a student's name, address, and telephone number, and other information typically found in school yearbooks or athletic programs. Other examples are names and pictures of participants in various extracurricular activities or recipients of awards, pictures of students, and height and weight of athletes.

Each year schools must give parents public notice of the types of information designated as directory information. By a specified time after parents are notified of their review rights, parents may ask to remove all or part of the information on their child that they do not wish to be available to the public without their consent.

U.S. school districts, in carrying out this FERPA mandate, typically request parental consent to share images of children attending a school with third parties as part of their usual annual enrollment paperwork for children attending the school. And, almost all but a a handful of parents usually consent in this context as a matter of course.

The only other fairly widely recognized state common law or statutory right that is closely on point is the right of publicity - i.e. the right to receive fair market value compensation for commercial use of a person's image, for example, in connection with an advertisement. Even this right isn't uniformly available in every U.S. jurisdiction and would not limit non-commercial use of a child's photo by the school.

Also, whether the school was public or private would matter. Public schools are eligible to claim governmental immunity to many kinds of claims that could arise in tort from an alleged privacy violation, but have more governmental rules and regulations to comply with than a private school (if it receives no federal funds, it doesn't even have to follow FERPA).

There is not a widely recognized common law or statutory right apart from FERPA to not have your image (or your children's images) shared publicly without their consent in the United States (although sometimes a special situation may apply in the case of a particular child, if, for example, the child is in a witness protection program, or is the subject to a protective order imposed due to threats from a parent's ex-spouse, for example).

Also, a private school could almost always make a of waiver legal publicity rights (if they exist at all) in its enrollment materials mandatory for all students. But, because attendance at a public school is mandatory (or more correctly, mandatory as a matter of last resort if the student can't arrange adequate private schooling or home schooling), a public school has less freedom to require parents of students to waive any legal rights that they do have as a condition of participating in mandatory school activities.

European Union laws and regulations regarding data privacy would not apply to this fact pattern if the students and school are all located in the United States, despite a global internet medium of international commerce that is used to facilitate this domestic educational activity.

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