A March 19, 2014 Associated Press article reported that a U.S. District Court judge in California has denied class action status for plaintiffs in a lawsuit alleging that Google’s use of students’ email content without consent violates the students’ privacy. In denying class action status, the judge ruled that determining which plaintiffs did or did not consent to Google’s use of his/her email content is impossible; individual lawsuits will have to be filed. Google’s software, Apps for Education, includes free email (Google’s Gmail) and is used by thousands of education agencies across the country. A March 13 Education Week article stated that Google has acknowledged that it scans and indexes the content of Gmail messages sent and received by students (called “data mining”). The scanned information can be used for a variety of purposes, including potential advertising. Public officials, industry leaders, and privacy advocates assert that Google’s alleged data mining conflicts with the principle that student information should not be used for commercial purposes.
The use of student information for targeted advertising may violate the Family Educational Rights and Privacy Act (FERPA) which governs the disclosure and use of personally identifiable student information. The U.S. Department of Education (ED) recently provided guidance to education agencies on the interpretation and application of FERPA when student information is transmitted through and/or stored on the internet (cloud computing). In its guidance, ED acknowledged that education agencies may contract with providers of internet services, but “Under FERPA, the provider may not use data about individual student preferences gleaned from scanning student content to target ads to individual students.” According to the Education Week article, a Google representative stated that “ads in Gmail are turned off by default for Google Apps for Education and we have no plans to change that in the future.” However, in other statements, Google has argued that it has students’ consent to scan and process their emails and to use the scanned information for advertising.