Though directed at K-12 schools, the guidance—particularly the model contract terms—can be readily translated to the college and university setting. The model contract terms address issues including data collection, use, redisclosure and destruction; the Department provides explanations for the recommended terms. The guidance also acknowledges that such terms may not be required by FERPA or other privacy laws, but indicates institutions should consider them as best practices.
In suggesting these model terms, the guidance calls on schools to consider the privacy challenges posed by “click wrap” terms of service agreements—contracts that get created when a user (usually thoughtlessly) clicks on an “I accept” or similar button. These challenges can include express waivers of privacy law protections as well as terms allowing the provider to share data indiscriminately or change terms unilaterally. Institutions may be able to override these pre-set terms through negotiation.
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