Senator Jacob L. Anderegg proposes the following substitute bill:


1     
STUDENT DATA PROTECTION AMENDMENTS

2     
2018 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Jacob L. Anderegg

5     
House Sponsor: Val L. Peterson

6     

7     LONG TITLE
8     General Description:
9          This bill amends provisions related to student data protection.
10     Highlighted Provisions:
11          This bill:
12          ▸     defines terms;
13          ▸     updates provisions of Title 53E, Chapter 9, Part 3, Student Data Protection, to:
14               •     coordinate with federal law; and
15               •     provide clarification;
16          ▸     grants certain rulemaking authority to the State Board of Education;
17          ▸     requires the State Board of Education to share certain student data with:
18               •     the Utah Registry of Autism and Developmental Disabilities; and
19               •     the State Board of Regents; and
20          ▸     makes technical and conforming corrections.
21     Money Appropriated in this Bill:
22          None
23     Other Special Clauses:
24          This bill provides a coordination clause.
25     Utah Code Sections Affected:
26     AMENDS:
27          53E-9-301, as renumbered and amended by Laws of Utah 2018, Chapter 1
28          53E-9-302, as renumbered and amended by Laws of Utah 2018, Chapter 1
29          53E-9-304, as renumbered and amended by Laws of Utah 2018, Chapter 1
30          53E-9-305, as renumbered and amended by Laws of Utah 2018, Chapter 1
31          53E-9-306, as renumbered and amended by Laws of Utah 2018, Chapter 1
32          53E-9-307, as renumbered and amended by Laws of Utah 2018, Chapter 1
33          53E-9-308, as renumbered and amended by Laws of Utah 2018, Chapter 1
34          53E-9-309, as renumbered and amended by Laws of Utah 2018, Chapter 1
35          53E-9-310, as renumbered and amended by Laws of Utah 2018, Chapter 1
36     Utah Code Sections Affected by Coordination Clause:
37          53E-9-304, as renumbered and amended by Laws of Utah 2018, Chapter 1
38     

39     Be it enacted by the Legislature of the state of Utah:
40          Section 1. Section 53E-9-301 is amended to read:
41          53E-9-301. Definitions.
42          As used in this part:
43          (1) "Adult student" means a student who:
44          (a) is at least 18 years old;
45          (b) is an emancipated student; or
46          (c) qualifies under the McKinney-Vento Homeless Education Assistance
47     Improvements Act of 2001, 42 U.S.C. Sec. 11431 et seq.
48          (2) "Aggregate data" means data that:
49          (a) are totaled and reported at the group, cohort, school, school district, region, or state
50     level with at least 10 individuals in the level;
51          (b) do not reveal personally identifiable student data; and
52          (c) are collected in accordance with board rule.
53          (3) (a) "Biometric identifier" means a:
54          (i) retina or iris scan;
55          (ii) fingerprint;
56          (iii) human biological sample used for valid scientific testing or screening; or
57          (iv) scan of hand or face geometry.
58          (b) "Biometric identifier" does not include:
59          (i) a writing sample;
60          (ii) a written signature;
61          (iii) a voiceprint;
62          (iv) a photograph;
63          (v) demographic data; or
64          (vi) a physical description, such as height, weight, hair color, or eye color.
65          (4) "Biometric information" means information, regardless of how the information is
66     collected, converted, stored, or shared:
67          (a) based on an individual's biometric identifier; and
68          (b) used to identify the individual.
69          (5) "Board" means the State Board of Education.
70          [(6) "Cumulative disciplinary record" means disciplinary student data that is part of a
71     cumulative record.]
72          [(7) "Cumulative record" means physical or electronic information that the education
73     entity intends:]
74          [(a) to store in a centralized location for 12 months or more; and]
75          [(b) for the information to follow the student through the public education system.]
76          [(8) "Data authorization" means written authorization to collect or share a student's
77     student data, from:]
78          [(a) the student's parent, if the student is not an adult student; or]
79          [(b) the student, if the student is an adult student.]
80          (6) "Data breach" means an unauthorized release of or unauthorized access to
81     personally identifiable student data that is maintained by an education entity.
82          [(9)] (7) "Data governance plan" means an education entity's comprehensive plan for
83     managing education data that:
84          (a) incorporates reasonable data industry best practices to maintain and protect student
85     data and other education-related data;
86          (b) describes the role, responsibility, and authority of an education entity data
87     governance staff member;
88          [(b)] (c) provides for necessary technical assistance, training, support, and auditing;
89          [(c)] (d) describes the process for sharing student data between an education entity and
90     another person;
91          [(d)] (e) describes the education entity's data expungement process [for an adult student
92     or parent to request that data be expunged; and], including how to respond to requests for
93     expungement;
94          (f) describes the data breach response process; and
95          [(e)] (g) is published annually and available on the education entity's website.
96          [(10)] (8) "Education entity" means:
97          (a) the board;
98          (b) a local school board;
99          (c) a charter school governing board;
100          (d) a school district;
101          (e) a charter school;
102          (f) the Utah Schools for the Deaf and the Blind; or
103          (g) for purposes of implementing the School Readiness Initiative described in Title
104     53F, Chapter 6, Part 3, School Readiness Initiative, the School Readiness Board created in
105     Section 53F-6-302.
106          [(11)] (9) "Expunge" means to seal or permanently delete data, as described in board
107     rule made under Section 53E-9-306.
108          [(12) "External application" means a general audience:]
109          [(a) application;]
110          [(b) piece of software;]
111          [(c) website; or]
112          [(d) service.]
113          (10) "General audience application" means an Internet website, online service, online
114     application, mobile application, or software program that:
115          (a) is not specifically intended for use by an audience member that attends kindergarten
116     or a grade from 1 to 12, although an audience member may attend kindergarten or a grade from
117     1 to 12; and
118          (b) is not subject to a contract between an education entity and a third-party contractor.
119          (11) "Higher education outreach student data" means the following student data for a
120     student:
121          (a) name;
122          (b) parent name;
123          (c) grade;
124          (d) school and school district; and
125          (e) contact information, including:
126          (i) primary phone number;
127          (ii) email address; and
128          (iii) physical address.
129          [(13)] (12) "Individualized education program" or "IEP" means a written statement:
130          (a) for a student with a disability; and
131          (b) that is developed, reviewed, and revised in accordance with the Individuals with
132     Disabilities Education Act, 20 U.S.C. Sec. 1400 et seq.
133          [(14) "Internal application" means an Internet website, online service, online
134     application, mobile application, or software, if the Internet website, online service, online
135     application, mobile application, or software is subject to a third-party contractor's contract with
136     an education entity.]
137          [(15)] (13) "Local education agency" or "LEA" means:
138          (a) a school district;
139          (b) a charter school;
140          (c) the Utah Schools for the Deaf and the Blind; or
141          (d) for purposes of implementing the School Readiness Initiative described in Title
142     53F, Chapter 6, Part 3, School Readiness Initiative, the School Readiness Board created in
143     Section 53F-6-302.
144          [(16) "Metadata dictionary" means a complete list of an education entity's student data
145     elements and other education-related data elements, that:]
146          [(a) defines and discloses all data collected, used, stored, and shared by the education
147     entity, including:]
148          [(i) who uses a data element within an education entity and how a data element is used
149     within an education entity;]
150          [(ii) if a data element is shared externally, who uses the data element externally and
151     how a data element is shared externally;]
152          [(iii) restrictions on the use of a data element; and]
153          [(iv) parent and student rights to a data element;]
154          [(b) designates student data elements as:]
155          [(i) necessary student data; or]
156          [(ii) optional student data;]
157          [(c) designates student data elements as required by state or federal law; and]
158          [(d) without disclosing student data or security information, is displayed on the
159     education entity's website.]
160          (14) "Metadata dictionary" means a record that:
161          (a) defines and discloses all personally identifiable student data collected and shared by
162     the education entity;
163          (b) comprehensively lists all recipients with whom the education entity has shared
164     personally identifiable student data, including:
165          (i) the purpose for sharing the data with the recipient;
166          (ii) the justification for sharing the data, including whether sharing the data was
167     required by federal law, state law, or a local directive; and
168          (iii) how sharing the data is permitted under federal or state law; and
169          (c) without disclosing personally identifiable student data, is displayed on the
170     education entity's website.
171          [(17)] (15) "Necessary student data" means data required by state statute or federal law
172     to conduct the regular activities of an education entity, including:
173          (a) name;
174          (b) date of birth;
175          (c) sex;
176          (d) parent contact information;
177          (e) custodial parent information;
178          (f) contact information;
179          (g) a student identification number;
180          (h) local, state, and national assessment results or an exception from taking a local,
181     state, or national assessment;
182          (i) courses taken and completed, credits earned, and other transcript information;
183          (j) course grades and grade point average;
184          (k) grade level and expected graduation date or graduation cohort;
185          (l) degree, diploma, credential attainment, and other school exit information;
186          (m) attendance and mobility;
187          (n) drop-out data;
188          (o) immunization record or an exception from an immunization record;
189          (p) race;
190          (q) ethnicity;
191          (r) tribal affiliation;
192          (s) remediation efforts;
193          (t) an exception from a vision screening required under Section 53G-9-404 or
194     information collected from a vision screening required under Section 53G-9-404;
195          (u) information related to the Utah Registry of Autism and Developmental Disabilities,
196     described in Section 26-7-4;
197          (v) student injury information;
198          (w) a [cumulative] disciplinary record created and maintained as described in Section
199     53E-9-306;
200          (x) juvenile delinquency records;
201          (y) English language learner status; and
202          (z) child find and special education evaluation data related to initiation of an IEP.
203          [(18)] (16) (a) "Optional student data" means student data that is not:
204          (i) necessary student data; or
205          (ii) student data that an education entity may not collect under Section 53E-9-305.
206          (b) "Optional student data" includes:
207          (i) information that is:
208          (A) related to an IEP or needed to provide special needs services; and
209          (B) not necessary student data;
210          (ii) biometric information; and
211          (iii) information that is not necessary student data and that is required for a student to
212     participate in a federal or other program.
213          [(19)] (17) "Parent" means [a student's parent or legal guardian.]:
214          (a) a student's parent;
215          (b) a student's legal guardian; or
216          (c) an individual who has written authorization from a student's parent or legal
217     guardian to act as a parent or legal guardian on behalf of the student.
218          [(20)] (18) (a) "Personally identifiable student data" means student data that identifies
219     or is used by the holder to identify a student.
220          (b) "Personally identifiable student data" includes:
221          (i) a student's first and last name;
222          (ii) the first and last name of a student's family member;
223          (iii) a student's or a student's family's home or physical address;
224          (iv) a student's email address or other online contact information;
225          (v) a student's telephone number;
226          (vi) a student's social security number;
227          (vii) a student's biometric identifier;
228          (viii) a student's health or disability data;
229          (ix) a student's education entity student identification number;
230          (x) a student's social media user name and password or alias;
231          (xi) if associated with personally identifiable student data, the student's persistent
232     identifier, including:
233          (A) a customer number held in a cookie; or
234          (B) a processor serial number;
235          (xii) a combination of a student's last name or photograph with other information that
236     together permits a person to contact the student online;
237          (xiii) information about a student or a student's family that a person collects online and
238     combines with other personally identifiable student data to identify the student; and
239          (xiv) [other information that is linked to a specific student that would allow a
240     reasonable person in the school community, who does not have first-hand knowledge of the
241     student, to identify the student with reasonable certainty.] information that, alone or in
242     combination, is linked or linkable to a specific student that would allow a reasonable person in
243     the school community, who does not have personal knowledge of the relevant circumstances,
244     to identify the student with reasonable certainty.
245          [(21)] (19) "School official" means an employee or agent of an education entity, if the
246     education entity has authorized the employee or agent to request or receive student data on
247     behalf of the education entity.
248          [(22)] (20) (a) "Student data" means information about a student at the individual
249     student level.
250          (b) "Student data" does not include aggregate or de-identified data.
251          [(23) "Student data disclosure statement" means a student data disclosure statement
252     described in Section 53E-9-305.]
253          [(24)] (21) "Student data manager" means:
254          (a) the state student data officer; or
255          (b) an individual designated as a student data manager by an education entity under
256     Section 53E-9-303[.], who fulfills the duties described in Section 53E-9-308.
257          [(25)] (22) (a) "Targeted advertising" means presenting advertisements to a student
258     where the advertisement is selected based on information obtained or inferred over time from
259     that student's online behavior, usage of applications, or student data.
260          (b) "Targeted advertising" does not include advertising to a student:
261          (i) at an online location based upon that student's current visit to that location; or
262          (ii) in response to that student's request for information or feedback, without retention
263     of that student's online activities or requests over time for the purpose of targeting subsequent
264     ads.
265          [(26)] (23) "Third-party contractor" means a person who:
266          (a) is not an education entity; and
267          (b) pursuant to a contract with an education entity, collects or receives student data in
268     order to provide a product or service, as described in the contract, if the product or service is
269     not related to school photography, yearbooks, graduation announcements, or a similar product
270     or service.
271          (24) "Written consent" means written authorization to collect or share a student's
272     student data, from:
273          (a) the student's parent, if the student is not an adult student; or
274          (b) the student, if the student is an adult student.
275          Section 2. Section 53E-9-302 is amended to read:
276          53E-9-302. State student data protection governance.
277          (1) (a) An education entity or a third-party contractor who collects, uses, stores, shares,
278     or deletes student data shall protect student data as described in this part.
279          (b) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
280     board shall make rules to administer this part, including student data protection standards for
281     public education employees, student aides, and volunteers.
282          (2) The board shall oversee the preparation and maintenance of:
283          (a) a statewide data governance plan; and
284          (b) a state-level metadata dictionary.
285          (3) As described in this Subsection (3), the board shall establish advisory groups to
286     oversee student data protection in the state and make recommendations to the board regarding
287     student data protection.
288          (a) The board shall establish a student data policy advisory group:
289          (i) composed of members from:
290          (A) the Legislature;
291          (B) the board and board employees; and
292          (C) one or more LEAs;
293          (ii) to discuss and make recommendations to the board regarding:
294          (A) enacted or proposed legislation; and
295          (B) state and local student data protection policies across the state;
296          (iii) that reviews and monitors the state student data governance plan; and
297          (iv) that performs other tasks related to student data protection as designated by the
298     board.
299          (b) The board shall establish a student data governance advisory group:
300          (i) composed of the state student data officer and other board employees; and
301          (ii) that performs duties related to state and local student data protection, including:
302          (A) overseeing data collection and usage by board program offices; and
303          (B) preparing and maintaining the board's student data governance plan under the
304     direction of the student data policy advisory group.
305          (c) The board shall establish a student data users advisory group:
306          (i) composed of members who use student data at the local level; and
307          (ii) that provides feedback and suggestions on the practicality of actions proposed by
308     the student data policy advisory group and the student data governance advisory group.
309          (4) (a) The board shall designate a state student data officer.
310          (b) The state student data officer shall:
311          (i) act as the primary point of contact for state student data protection administration in
312     assisting the board to administer this part;
313          (ii) ensure compliance with student privacy laws throughout the public education
314     system, including:
315          (A) providing training and support to applicable board and LEA employees; and
316          (B) producing resource materials, model plans, and model forms for local student data
317     protection governance, including a model student data [disclosure statement] collection notice;
318          (iii) investigate complaints of alleged violations of this part;
319          (iv) report violations of this part to:
320          (A) the board;
321          (B) an applicable education entity; and
322          (C) the student data policy advisory group; and
323          (v) act as a state level student data manager.
324          (5) The board shall designate:
325          (a) at least one support manager to assist the state student data officer; and
326          (b) a student data protection auditor to assist the state student data officer.
327          (6) The board shall establish [an external] a research review process for a request for
328     data for the purpose of [external] research or evaluation.
329          Section 3. Section 53E-9-304 is amended to read:
330          53E-9-304. Student data ownership and access -- Notification in case of
331     significant data breach.
332          (1) (a) A student owns the student's personally identifiable student data.
333          [(b) A student may download, export, transfer, save, or maintain the student's student
334     data, including a document.]
335          (b) An education entity shall allow the following individuals to access a student's
336     student data that is maintained by the education entity:
337          (i) the student's parent;
338          (ii) the student; and
339          (iii) in accordance with the education entity's internal policy described in Section
340     53E-9-303 and in the absence of a parent, an individual acting as a parent to the student.
341          (2) (a) If [there is a release of a student's personally identifiable student data due to a
342     security breach, an] a significant data breach occurs at an education entity, the education entity
343     shall notify:
344          [(a)] (i) the student, if the student is an adult student; or
345          [(b)] (ii) the student's parent or legal guardian, if the student is not an adult student.
346          (b) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
347     board shall make rules to define a significant data breach described in Subsection (2)(a).
348          Section 4. Section 53E-9-305 is amended to read:
349          53E-9-305. Collecting student data -- Prohibition -- Student data collection notice
350     -- Authorization.
351          [(1) An education entity shall comply with this section beginning with the 2017-18
352     school year.]
353          [(2)] (1) An education entity may not collect a student's:
354          (a) social security number; or
355          (b) except as required in Section 78A-6-112, criminal record.
356          [(3)] (2) An education entity that collects student data [into a cumulative record] shall,
357     in accordance with this section, prepare and distribute, except as provided in Subsection (3), to
358     parents and students a student data [disclosure] collection notice statement that:
359          (a) is a prominent, stand-alone document;
360          (b) is annually updated and published on the education entity's website;
361          (c) states the [necessary and optional] student data that the education entity collects;
362          (d) states that the education entity will not collect the student data described in
363     Subsection [(2)] (1);
364          (e) states the student data described in Section 53E-9-308 that the education entity may
365     not share without [a data authorization] written consent;
366          [(f) describes how the education entity may collect, use, and share student data;]
367          [(g)] (f) includes the following statement:
368          "The collection, use, and sharing of student data has both benefits and risks. Parents
369     and students should learn about these benefits and risks and make choices regarding student
370     data accordingly.";
371          [(h)] (g) describes in general terms how the education entity stores and protects student
372     data; [and]
373          [(i)] (h) states a student's rights under this part[.]; and
374          (i) for an education entity that teaches students in grade 9, 10, 11, or 12, requests
375     written consent to share student data with the State Board of Regents as described in Section
376     53E-9-308.
377          (3) The board may publicly post the board's collection notice described in Subsection
378     (2).
379          (4) An education entity may collect the necessary student data of a student [into a
380     cumulative record] if the education entity provides a student data [disclosure statement]
381     collection notice to:
382          (a) the student, if the student is an adult student; or
383          (b) the student's parent, if the student is not an adult student.
384          (5) An education entity may collect optional student data [into a cumulative record] if
385     the education entity:
386          (a) provides, to an individual described in Subsection (4), a student data [disclosure
387     statement] collection notice that includes a description of:
388          (i) the optional student data to be collected; and
389          (ii) how the education entity will use the optional student data; and
390          (b) obtains [a data authorization] written consent to collect the optional student data
391     from an individual described in Subsection (4).
392          (6) An education entity may collect a student's biometric identifier or biometric
393     information [into a cumulative record] if the education entity:
394          (a) provides, to an individual described in Subsection (4), a biometric information
395     [disclosure statement] collection notice that is separate from a student data [disclosure
396     statement] collection notice, which states:
397          (i) the biometric identifier or biometric information to be collected;
398          (ii) the purpose of collecting the biometric identifier or biometric information; and
399          (iii) how the education entity will use and store the biometric identifier or biometric
400     information; and
401          (b) obtains [a data authorization] written consent to collect the biometric identifier or
402     biometric information from an individual described in Subsection (4).
403          (7) Except under the circumstances described in Subsection 53G-8-211(2), an
404     education entity may not refer a student to an alternative school-related intervention described
405     in Subsection 53G-8-211(3) without written consent.
406          Section 5. Section 53E-9-306 is amended to read:
407          53E-9-306. Using and deleting student data -- Rulemaking -- Disciplinary
408     records.
409          (1) In accordance with Title 63G, Chapter 2, Government Records Access and
410     Management Act, and Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the board
411     shall make rules regarding using and expunging student data, including:
412          (a) a categorization of [cumulative] disciplinary records that includes the following
413     levels of maintenance:
414          (i) one year;
415          (ii) three years; and
416          (iii) [except as required in] in accordance with Subsection (3), as determined by the
417     education entity;
418          (b) the types of student data that may be expunged, including:
419          (i) medical records; and
420          (ii) behavioral test assessments; [and]
421          (c) the types of student data that may not be expunged, including:
422          (i) grades;
423          (ii) transcripts;
424          (iii) a record of the student's enrollment; and
425          (iv) assessment information[.]; and
426          (d) the timeline and process for a prior student or parent of a prior student to request
427     that an education entity expunge all of the prior student's student data.
428          (2) In accordance with board rule, an education entity may create and maintain a
429     [cumulative] disciplinary record for a student.
430          [(3) (a) An education entity shall, in accordance with board rule, expunge a student's
431     student data that is stored by the education entity if:]
432          [(i) the student is at least 23 years old; and]
433          [(ii) the student requests that the education entity expunge the student data.]
434          [(b)] (3) An education entity shall retain and dispose of records in accordance with
435     Section 63G-2-604 and board rule.
436          Section 6. Section 53E-9-307 is amended to read:
437          53E-9-307. Securing and cataloguing student data.
438          In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
439     board shall make rules that:
440          (1) using reasonable data industry best practices, prescribe the maintenance and
441     protection of stored student data by:
442          (a) an education entity; [and]
443          (b) the Utah Registry of Autism and Developmental Disabilities, described in Section
444     26-7-4, for student data obtained under Section 53E-9-308; and
445          [(b)] (c) a third-party contractor; and
446          (2) state requirements for an education entity's metadata dictionary.
447          Section 7. Section 53E-9-308 is amended to read:
448          53E-9-308. Sharing student data -- Prohibition -- Requirements for student data
449     manager -- Authorized student data sharing.
450          [(1) An education entity shall comply with this section beginning with the 2017-18
451     school year.]
452          [(2) An education entity may not share a student's personally identifiable student data if
453     the personally identifiable student data is not shared in accordance with:]
454          [(a) the Family Education Rights and Privacy Act and related provisions under 20
455     U.S.C. Secs. 1232g and 1232h; and]
456          [(b) this part.]
457          (1) (a) Except as provided in Subsection (1)(b), an education entity, including a student
458     data manager, may not share personally identifiable student data without written consent.
459          (b) An education entity, including a student data manager, may share personally
460     identifiable student data:
461          (i) in accordance with the Family Education Rights and Privacy Act and related
462     provisions under 20 U.S.C. Secs. 1232g and 1232h;
463          (ii) as required by federal law; and
464          (iii) as described in Subsections (3), (5), and (6).
465          [(3)] (2) A student data manager shall:
466          (a) authorize and manage the sharing, outside of the student data manager's education
467     entity, of personally identifiable student data [from a cumulative record] for the education
468     entity as described in this section; [and]
469          (b) act as the primary local point of contact for the state student data officer described
470     in Section 53E-9-302[.]; and
471          (c) fulfill other responsibilities described in the data governance plan of the student
472     data manager's education entity.
473          [(4) (a) Except as provided in this section or required by federal law, a student data
474     manager may not share, outside of the education entity, personally identifiable student data
475     from a cumulative record without a data authorization.]
476          [(b) A student data manager may share the personally identifiable student data of a
477     student with the student and the student's parent.]
478          [(5) A student data manager may share a student's personally identifiable student data
479     from a cumulative record with:]
480          [(a) a school official;]
481          [(b) as described in Subsection (6), an authorized caseworker or other representative of
482     the Department of Human Services; or]
483          [(c) a person to whom the student data manager's education entity has outsourced a
484     service or function:]
485          [(i) to research the effectiveness of a program's implementation; or]
486          [(ii) that the education entity's employees would typically perform.]
487          [(6)] (3) A student data manager may share a student's personally identifiable student
488     data [from a cumulative record] with a caseworker or representative of the Department of
489     Human Services if:
490          (a) the Department of Human Services is:
491          (i) legally responsible for the care and protection of the student; or
492          (ii) providing services to the student;
493          (b) the student's personally identifiable student data is not shared with a person who is
494     not authorized:
495          (i) to address the student's education needs; or
496          (ii) by the Department of Human Services to receive the student's personally
497     identifiable student data; and
498          (c) the Department of Human Services maintains and protects the student's personally
499     identifiable student data.
500          [(7)] (4) The Department of Human Services, a school official, or the Utah Juvenile
501     Court may share [education information, including a student's personally identifiable student
502     data,] personally identifiable student data to improve education outcomes for youth:
503          (a) in the custody of, or under the guardianship of, the Department of Human Services;
504          (b) receiving services from the Division of Juvenile Justice Services;
505          (c) in the custody of the Division of Child and Family Services;
506          (d) receiving services from the Division of Services for People with Disabilities; or
507          (e) under the jurisdiction of the Utah Juvenile Court.
508          [(8) Subject to Subsection (9), a student data manager may share aggregate data.]
509          [(9) (a) If a student data manager receives a request to share data for the purpose of
510     external research or evaluation, the student data manager shall:]
511          [(i) submit the request to the education entity's external research review process; and]
512          [(ii) fulfill the instructions that result from the review process.]
513          [(b) A student data manager may not share personally identifiable student data for the
514     purpose of external research or evaluation.]
515          [(10) (a) A student data manager may share personally identifiable student data in
516     response to a subpoena issued by a court.]
517          [(b) A person who receives personally identifiable student data under Subsection
518     (10)(a) may not use the personally identifiable student data outside of the use described in the
519     subpoena.]
520          [(11) (a) In accordance with board rule, a student data manager may share personally
521     identifiable information that is directory information.]
522          [(b) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act,
523     the board shall make rules to:]
524          [(i) define directory information; and]
525          [(ii) determine how a student data manager may share personally identifiable
526     information that is directory information.]
527          (5) (a) A student data manager may share personally identifiable student data in
528     response to a subpoena issued by a court.
529          (b) A person who receives personally identifiable student data under Subsection (5)(a)
530     may not use the personally identifiable student data outside of the use described in the
531     subpoena.
532          (6) (a) A student data manager may share student data, including personally
533     identifiable student data, in response to a request to share student data for the purpose of
534     research or evaluation, if the student data manager:
535          (i) verifies that the request meets the requirements of 34 C.F.R. Sec. 99.31(a)(6);
536          (ii) submits the request to the education entity's research review process; and
537          (iii) fulfills the instructions that result from the review process.
538          (b) (i) In accordance with state and federal law, the board shall share student data,
539     including personally identifiable student data, as requested by the Utah Registry of Autism and
540     Developmental Disabilities described in Section 26-7-4.
541          (ii) A person who receives student data under Subsection (6)(b)(i):
542          (A) shall maintain and protect the student data in accordance with board rule described
543     in Section 53E-9-307;
544          (B) may not use the student data for a purpose not described in Section 26-7-4; and
545          (C) is subject to audit by the state student data officer described in Section 53E-9-302.
546          (c) The board shall enter into an agreement with the State Board of Regents,
547     established in Section 53B-1-103, to share higher education outreach student data, for students
548     in grades 9 through 12 who have obtained written consent under Subsection 53E-9-305(2)(i), to
549     be used strictly for the purpose of:
550          (A) providing information and resources to students in grades 9 through 12 about
551     higher education; and
552          (B) helping students in grades 9 through 12 enter the higher education system and
553     remain until graduation.
554          Section 8. Section 53E-9-309 is amended to read:
555          53E-9-309. Third-party contractors -- Use and protection of student data --
556     Contract requirements -- Completion of contract -- Required and allowed uses of student
557     data -- Restrictions on the use of student data -- Exceptions.
558          (1) A third-party contractor shall use personally identifiable student data received
559     under a contract with an education entity strictly for the purpose of providing the contracted
560     product or service within the negotiated contract terms.
561          (2) When contracting with a third-party contractor, an education entity shall require the
562     following provisions in the contract:
563          (a) requirements and restrictions related to the collection, use, storage, or sharing of
564     student data by the third-party contractor that are necessary for the education entity to ensure
565     compliance with the provisions of this part and board rule;
566          (b) a description of a person, or type of person, including an affiliate of the third-party
567     contractor, with whom the third-party contractor may share student data;
568          (c) provisions that, at the request of the education entity, govern the deletion of the
569     student data received by the third-party contractor;
570          (d) except as provided in Subsection (4) and if required by the education entity,
571     provisions that prohibit the secondary use of personally identifiable student data by the
572     third-party contractor; and
573          (e) an agreement by the third-party contractor that, at the request of the education entity
574     that is a party to the contract, the education entity or the education entity's designee may audit
575     the third-party contractor to verify compliance with the contract.
576          (3) As authorized by law or court order, a third-party contractor shall share student data
577     as requested by law enforcement.
578          (4) A third-party contractor may:
579          (a) use student data for adaptive learning or customized student learning purposes;
580          (b) market an educational application or product to a parent [or legal guardian] of a
581     student if the third-party contractor did not use student data, shared by or collected on behalf of
582     an education entity, to market the educational application or product;
583          (c) use a recommendation engine to recommend to a student:
584          (i) content that relates to learning or employment, within the third-party contractor's
585     [internal] application, if the recommendation is not motivated by payment or other
586     consideration from another party; or
587          (ii) services that relate to learning or employment, within the third-party contractor's
588     [internal] application, if the recommendation is not motivated by payment or other
589     consideration from another party;
590          (d) respond to a student request for information or feedback, if the content of the
591     response is not motivated by payment or other consideration from another party;
592          (e) use student data to allow or improve operability and functionality of the third-party
593     contractor's [internal] application; or
594          (f) identify for a student nonprofit institutions of higher education or scholarship
595     providers that are seeking students who meet specific criteria:
596          (i) regardless of whether the identified nonprofit institutions of higher education or
597     scholarship providers provide payment or other consideration to the third-party contractor; and
598          (ii) [except as provided in Subsection (5),] only if the third-party contractor obtains
599     [written consent] authorization in writing from:
600          (A) [of] a student's parent [or legal guardian] through the student's school or LEA; or
601          (B) for [a] an adult student [who is age 18 or older or an emancipated minor, from], the
602     student.
603          [(5) A third-party contractor is not required to obtain written consent under Subsection
604     (4)(f)(ii) if the third-party contractor:]
605          [(a) is a national assessment provider; and]
606          [(b) (i) secures the express written consent of the student or the student's parent; and]
607          [(ii) the express written consent is given in response to clear and conspicuous notice
608     that the national assessment provider requests consent solely to provide access to information
609     on employment, educational scholarships, financial aid, or postsecondary educational
610     opportunities.]
611          [(6)] (5) At the completion of a contract with an education entity, if the contract has not
612     been renewed, a third-party contractor shall return or delete upon the education entity's request
613     all personally identifiable student data under the control of the education entity unless a student
614     or the student's parent consents to the maintenance of the personally identifiable student data.
615          [(7)] (6) (a) A third-party contractor may not:
616          (i) except as provided in [Subsections (5) and (7)(b)] Subsection (6)(b), sell student
617     data;
618          (ii) collect, use, or share student data, if the collection, use, or sharing of the student
619     data is inconsistent with the third-party contractor's contract with the education entity; or
620          (iii) use student data for targeted advertising.
621          (b) A person may obtain student data through the purchase of, merger with, or
622     otherwise acquiring a third-party contractor if the third-party contractor remains in compliance
623     with this section.
624          [(8) A provider of an electronic store, gateway, marketplace, or other means of
625     purchasing an external application is not required to ensure that the external application
626     obtained through the provider complies with this section.]
627          [(9)] (7) The provisions of this section do not:
628          (a) apply to the use of [an external] a general audience application, including the access
629     of [an external] a general audience application with login credentials created by a third-party
630     contractor's [internal] application;
631          (b) apply to the providing of Internet service; or
632          (c) impose a duty on a provider of an interactive computer service, as defined in 47
633     U.S.C. Sec. 230, to review or enforce compliance with this section.
634          (8) A provision of this section that relates to a student's student data does not apply to a
635     third-party contractor if the third-party contractor obtains authorization from the following
636     individual, in writing, to waive that provision:
637          (a) the student's parent, if the student is not an adult student; or
638          (b) the student, if the student is an adult student.
639          Section 9. Section 53E-9-310 is amended to read:
640          53E-9-310. Penalties.
641          (1) (a) A third-party contractor that knowingly or recklessly permits unauthorized
642     collecting, sharing, or use of student data under this part:
643          (i) except as provided in Subsection (1)(b), may not enter into a future contract with an
644     education entity;
645          (ii) may be required by the board to pay a civil penalty of up to $25,000; and
646          (iii) may be required to pay:
647          (A) the education entity's cost of notifying parents and students of the unauthorized
648     sharing or use of student data; and
649          (B) expenses incurred by the education entity as a result of the unauthorized sharing or
650     use of student data.
651          (b) An education entity may enter into a contract with a third-party contractor that
652     knowingly or recklessly permitted unauthorized collecting, sharing, or use of student data if:
653          (i) the board or education entity determines that the third-party contractor has corrected
654     the errors that caused the unauthorized collecting, sharing, or use of student data; and
655          (ii) the third-party contractor demonstrates:
656          (A) if the third-party contractor is under contract with an education entity, current
657     compliance with this part; or
658          (B) an ability to comply with the requirements of this part.
659          (c) The board may assess the civil penalty described in Subsection (1)(a)(ii) in
660     accordance with Title 63G, Chapter 4, Administrative Procedures Act.
661          (d) The board may bring an action in the district court of the county in which the office
662     of the board is located, if necessary, to enforce payment of the civil penalty described in
663     Subsection (1)(a)(ii).
664          (e) An individual who knowingly or intentionally permits unauthorized collecting,
665     sharing, or use of student data may be found guilty of a class A misdemeanor.
666          (2) (a) A parent or adult student may bring an action in a court of competent
667     jurisdiction for damages caused by a knowing or reckless violation of Section 53E-9-309 by a
668     third-party contractor.
669          (b) If the court finds that a third-party contractor has violated Section 53E-9-309, the
670     court may award to the parent or student:
671          (i) damages; and
672          (ii) costs.
673          Section 10. Coordinating S.B. 207 with H.B. 132 -- Technical amendment.
674          If this S.B. 207 and H.B. 132, Juvenile Justice Modifications, both pass and become
675     law, it is the intent of the Legislature that the Office of Legislative Research and General
676     Counsel shall prepare the Utah Code database for publication by amending Subsection
677     53E-9-305(7) to read:
678          "(7) Except under the circumstances described in Subsection 53G-8-211(2), an
679     education entity may not refer a student to an alternative evidence-based intervention described
680     in Subsection 53G-8-211(3) without written consent."