Updating Federal and State Policy
Another avenue to expand community’s control over data infrastructure is to advocate for favorable federal and state policies. Multiple studies have found that the current legal framework is insufficient to prevent the commercial exploitation of student data.1: In the U.S., the most immediate opportunity centers on data privacy protections, and the primary federal law that governs student data privacy in higher education, the Family Educational Rights and Privacy Act (FERPA). This law was established before the internet, and is limited in both scope of coverage and protection it offers students. Updating FERPA is a clear opportunity to advocate for stronger provisions that guarantee students full control over their education data, protect it from exploitation, and set stronger security standards for vendors.
Another promising option derives from federal-level discussions around potential consumer data privacy legislation, akin to Canada’s Personal Information Protection and Electronic Documents Act (PIPEDA) and Europe’s General Data Protection Regulation (GDPR). Ensuring that any proposed legislation also applies in the education environment (and carries any additional protections the community deems necessary), would also provide leverage to institutions for maintaining control over critical data.
In both the U.S. and Canada, higher education is closely tied to the state or provincial governments, so legislation at this level could also offer advantages. For example, state law typically governs procurement at public institutions, and open procurement practices could be advanced through a ban on NDAs or other unwanted provisions in relevant contracts. State and provincial governments might also consider introducing regulations that guarantee that students are informed about the terms of use for digital course materials before registering for a course, or regulating “inclusive access” programs to prevent course materials from becoming an unaccountable student fee.
Antitrust Actions
There are also possible actions that can be considered under existing antitrust law. Both the scholarly communications and courseware publishing markets have become increasingly concentrated in recent years, despite concerns raised within the academic community. The rise of data analytics adds another layer of concern: if the economic model of digital publishing favors oligopolies, that of data analytics favors the rise of monopolies. As our experience of social networks and search engines demonstrates, the future of research and education could end up being defined by singular firms with excessive market power.
The recent decision of the Department of Justice to initiate an investigation into the practices of leading tech companies suggest that the view of regulators over these issues may evolve, particularly in regard to the collection and usage of data. While it is early days, the academic community should monitor how regulators (and the courts) decide on concentration of data and data analytics services and their ties to the provision of other services and – if the situation demands it – initiate or support antitrust actions at the appropriate point in time. The community can also work collectively to take proactive antitrust action by filing comments with antitrust enforcement agencies or working actively to oppose mergers.
