Data Protection – Anticipating New Rules

On January 25th 2012, the European Commission released its proposals for significant reform of data protection rules in Europe (drafts had been leaked in late 2011). These proposals have been largely welcomed by the Information Commissioners Office , although it also recommends further thought over some of the proposals. The dramatic changes in the scale and scope of handling personal information in online retailing and social networking since the 1990′s, when current rules were implemented, is an obvious driver for change. The rise of “cloud computing” is a related factor.

What might this mean for the UK education system, especially for those concerned with educational technology?

On the whole, the answer is probably a fairly bland “not much” since we are, as a sector, pretty good at being responsible with personal data. Sector ethics, regardless of legislation, is to be institutionally concerned and careful and, providing enough time is available to adapt systems (of working and IT), this should be a relatively low impact change. There are, however, a few implications worthy of comment…

The Principle of Data Portability

Unless you know nothing about CETIS, it should come as no surprise that “data portability” caught my eye. EC Fact Sheet No. 2 says:

‘The Commission also wants to guarantee free and easy access to your personal data, making it easier for you to see what personal information is held about you by companies and public authorities, and make it easier for you to transfer your personal data between service providers – the so-called principle of “data portability”.’

Notice that this includes “public authorities”. Quite how this principle will affect practice remains to be seen but it does appear to have implications at the level of individual educational establishments and sector services such as the Learning Records Service (formerly MIAP). It is conceivable that this requirement will be satisfied by “download as HTML”, a rather lame interpretation of making it easier to transfer personal data, but I do hope not.

So: are there candidate interoperability standards? Yes, there are:

  • LEAP2A for e-portfolio portability and interoperability,
  • A European Standard, EN 15981, “European Learner Mobility Achievement Information” (an earlier open-access version is available as a CEN Workshop Agreement, CWA 16132)

These do not cover absolutely everything you might wish to “port” but widespread adoption as part of demonstrating compliance with a legislative “data portability” requirement is an option that is available to us.

It is also worth noting Principle 7 of “Information Principles for the UK Public Sector” (pdf) – see also my previous posting – which is entitled “Citizens and Businesses Can Access Information About Themselves” and recommends information strategies should go “… beyond the legal obligations” and  identify opportunities  “to proactively make information about citizens available to them by default”, noting that this would negate the cost of process and systems for responding to Subject Access Requests. I hope that this attitude is embraced and that the software is designed on a “give them everything” principle rather than “give them the minimum we think the law requires”. Software vendors should be thinking about this now.

There are some interesting possibilities for learner mobility if learners have a right to access and transfer fine grained achievement and progress information, especially where that is linked to well defined competence (etc) structures. Can we imagine more nomadic learners, especially those who may be early adopters of offerings from the kind of new providers that David Willetts and colleagues are angling for?

The Right to be Forgotten

This right is clearly aimed squarely at the social network hubs and online retailers (see the EC Fact Sheet No.3, pdf). It isn’t very  likely that anyone would want to have their educational experiences and achievements forgotten unless they plan to “vanish”. Indeed, it would be surprising if existing records retention requirements would be changed and the emerging trend of having secure document storage and retrieval services under user control – e.g. DARE – seems set to continue and be the way we manage this issue cost-effectively.

The right to be forgotten may be more of a threat to realising the “learning analytics” dream, even if only in adding to existing uncertainty, doubt and sometimes also fear. We need some robust and widely accepted protocols to define legally and ethically acceptable practice.

Uniformity of Legislation

The national laws that were enacted to meet the existing data protection requirements are all different and the new proposals are to have a single uniform set of rules. This makes sense from the point of view of a multi-nation business, although it will not be without critics. This is just one factor that could make a pan-European online Higher Education initiative easier to realise, whether a single provider or a collaboration. I perceive signs that people are moving closer to viable approaches to large scale online distance education using mature technologies, and possibly English as the language of instruction and assessment; looming “low-end disruptions” (see the Wikipedia article on “Disruptive Innovation“) for the academy as we know it. [Look out for an interview with Seb Schmoller which has influenced my views, due to be published soon on the JISC Observatory website.]

This is, of course, just some initial impressions on some proposals. I am sure there is a great deal that I have missed from a fairly quick scan of material from the commission and there is bound to be a lot of carping from those with businesses built around exploiting personal data so the final shape of things might be quite different.

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