NYCLU Informs College Students About Privacy Rights Under New Anti-Terrorism Law

In the wake of the new anti-terrorism law giving greater surveillance powers to federal law enforcement, the New York Civil Liberties Union announced a statewide campaign to help college students and their schools understand their rights to privacy of records. According to the NYCLU, there has been heightened concern on campus, particularly among foreign students who are nervous about being investigated and among administrators unsure about their legal obligations in the event they receive requests for information from federal law enforcement.

“Privacy rights have been weakened and it is now doubly important that college students check their education records for accuracy,” said Donna Lieberman, NYCLU Executive Director. “The good news is that significant rights still remain,” she added.

As the first step in the campaign, the NYCLU sent a detailed letter to presidents and top administrators at every college and university in New York State, explaining the laws governing the privacy rights of students and academic institutions. Step two is the activation of an emergency email hotline address to answer privacy questions. The hotline address is studentprivacy@nyclu.org. Email questions will be answered within 48 hours, Monday through Friday. Step three of the campaign is a detailed brochure that will explain in easy to understand language, students’ privacy rights. The brochure will be developed as questions arise and will be made available throughout the state.

The Family Education Rights and Privacy Act of 1974 (FERPA) generally bars an academic institution from releasing a student’s “education records” without a student’s consent, unless the school has been mandated by court order or subpoena. Examples include transcripts, financial aid and disciplinary records. When records are subpoenaed under FERPA, the school is required by law to inform the student before the releasing the information. This gives the school or the student an opportunity to go to court to seek to quash the subpoena.

However, the USA-PATRIOT Act, enacted after the terrorist attacks of September 11th, amends FERPA to take away significant privacy protections from students. The USA-PATRIOT Act allows federal law enforcement to obtain a secret court order for release of FERPA information if the United States Attorney General (AG) certifies that the information is relevant to a terrorism investigation. And when the subpoena is secret, the student has no chance to challenge it in court.

The USA-PATRIOT Act also allows the AG to use a secret terrorism subpoena to obtain a vast amount of information from schools that was in the past, strictly confidential and never releasable. This information includes everything from students’ test scores to extracurricular activities to financial aid and personal assets.

The USA-PATRIOT Act takes away even more privacy rights from foreign students on visas. The Act gives the FBI and federal prosecutors the right to all sorts of personal information about students that is routinely reported by academic institutions to the Immigration and Naturalization Service (INS) and the Department of State (DOS). The Act also mandates the creation of a national database to contain this information, and more. Though the database has not yet been funded, once it is, it will be enormously detailed, easily accessible and searchable, and will be available to federal, state and local law enforcement authorities.

The New York Civil Liberties Union is the New York State chapter of the ACLU. It was founded fifty years ago and is dedicated to protecting and enhancing New Yorkers’ civil liberties as promised by the Bill of Rights of the United States Constitution and the New York State Constitution. It does this through litigation, public education, community organizing and lobbying.