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Public Act 101-0516


 

Public Act 0516 101ST GENERAL ASSEMBLY

  
  
  

 


 
Public Act 101-0516
 
HB3606 EnrolledLRB101 09053 AXK 54146 b

    AN ACT concerning education.
 
    Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
 
    Section 5. The Student Online Personal Protection Act is
amended by changing Sections 5, 10, 15, and 30 and by adding
Sections 26, 27, 28, and 33 as follows:
 
    (105 ILCS 85/5)
    Sec. 5. Definitions. In this Act:
    "Breach" means the unauthorized acquisition of
computerized data that compromises the security,
confidentiality, or integrity of covered information
maintained by an operator or school. "Breach" does not include
the good faith acquisition of personal information by an
employee or agent of an operator or school for a legitimate
purpose of the operator or school if the covered information is
not used for a purpose prohibited by this Act or subject to
further unauthorized disclosure.
    "Covered information" means personally identifiable
information or material or information that is linked to
personally identifiable information or material in any media or
format that is not publicly available and is any of the
following:
        (1) Created by or provided to an operator by a student
    or the student's parent or legal guardian in the course of
    the student's or , parent's, or legal guardian's use of the
    operator's site, service, or application for K through 12
    school purposes.
        (2) Created by or provided to an operator by an
    employee or agent of a school or school district for K
    through 12 school purposes.
        (3) Gathered by an operator through the operation of
    its site, service, or application for K through 12 school
    purposes and personally identifies a student, including,
    but not limited to, information in the student's
    educational record or electronic mail, first and last name,
    home address, telephone number, electronic mail address,
    or other information that allows physical or online
    contact, discipline records, test results, special
    education data, juvenile dependency records, grades,
    evaluations, criminal records, medical records, health
    records, a social security number, biometric information,
    disabilities, socioeconomic information, food purchases,
    political affiliations, religious information, text
    messages, documents, student identifiers, search activity,
    photos, voice recordings, or geolocation information.
    "Interactive computer service" has the meaning ascribed to
that term in Section 230 of the federal Communications Decency
Act of 1996 (47 U.S.C. 230).
    "K through 12 school purposes" means purposes that are
directed by or that customarily take place at the direction of
a school, teacher, or school district; aid in the
administration of school activities, including, but not
limited to, instruction in the classroom or at home,
administrative activities, and collaboration between students,
school personnel, or parents; or are otherwise for the use and
benefit of the school.
    "Longitudinal data system" has the meaning given to that
term under the P-20 Longitudinal Education Data System Act.
    "Operator" means, to the extent that an entity is operating
in this capacity, the operator of an Internet website, online
service, online application, or mobile application with actual
knowledge that the site, service, or application is used
primarily for K through 12 school purposes and was designed and
marketed for K through 12 school purposes.
    "Parent" has the meaning given to that term under the
Illinois School Student Records Act.
    "School" means (1) any preschool, public kindergarten,
elementary or secondary educational institution, vocational
school, special educational facility, or any other elementary
or secondary educational agency or institution or (2) any
person, agency, or institution that maintains school student
records from more than one school. Except as otherwise provided
in this Act, "school" "School" includes a private or nonpublic
school.
    "State Board" means the State Board of Education.
    "Student" has the meaning given to that term under the
Illinois School Student Records Act.
    "Targeted advertising" means presenting advertisements to
a student where the advertisement is selected based on
information obtained or inferred over time from that student's
online behavior, usage of applications, or covered
information. The term does not include advertising to a student
at an online location based upon that student's current visit
to that location or in response to that student's request for
information or feedback, without the retention of that
student's online activities or requests over time for the
purpose of targeting subsequent ads.
(Source: P.A. 100-315, eff. 8-24-17.)
 
    (105 ILCS 85/10)
    Sec. 10. Operator prohibitions. An operator shall not
knowingly do any of the following:
        (1) Engage in targeted advertising on the operator's
    site, service, or application or target advertising on any
    other site, service, or application if the targeting of the
    advertising is based on any information, including covered
    information and persistent unique identifiers, that the
    operator has acquired because of the use of that operator's
    site, service, or application for K through 12 school
    purposes.
        (2) Use information, including persistent unique
    identifiers, created or gathered by the operator's site,
    service, or application to amass a profile about a student,
    except in furtherance of K through 12 school purposes.
    "Amass a profile" does not include the collection and
    retention of account information that remains under the
    control of the student, the student's parent or legal
    guardian, or the school.
        (3) Sell or rent a student's information, including
    covered information. This subdivision (3) does not apply to
    the purchase, merger, or other type of acquisition of an
    operator by another entity if the operator or successor
    entity complies with this Act regarding previously
    acquired student information.
        (4) Except as otherwise provided in Section 20 of this
    Act, disclose covered information, unless the disclosure
    is made for the following purposes:
            (A) In furtherance of the K through 12 school
        purposes of the site, service, or application if the
        recipient of the covered information disclosed under
        this clause (A) does not further disclose the
        information, unless done to allow or improve
        operability and functionality of the operator's site,
        service, or application.
            (B) To ensure legal and regulatory compliance or
        take precautions against liability.
            (C) To respond to the judicial process.
            (D) To protect the safety or integrity of users of
        the site or others or the security of the site,
        service, or application.
            (E) For a school, educational, or employment
        purpose requested by the student or the student's
        parent or legal guardian, provided that the
        information is not used or further disclosed for any
        other purpose.
            (F) To a third party if the operator contractually
        prohibits the third party from using any covered
        information for any purpose other than providing the
        contracted service to or on behalf of the operator,
        prohibits the third party from disclosing any covered
        information provided by the operator with subsequent
        third parties, and requires the third party to
        implement and maintain reasonable security procedures
        and practices as required under Section 15.
    Nothing in this Section prohibits the operator's use of
information for maintaining, developing, supporting,
improving, or diagnosing the operator's site, service, or
application.
(Source: P.A. 100-315, eff. 8-24-17.)
 
    (105 ILCS 85/15)
    Sec. 15. Operator duties. An operator shall do the
following:
        (1) Implement and maintain reasonable security
    procedures and practices that otherwise meet or exceed
    industry standards appropriate to the nature of the covered
    information and designed to protect that covered
    information from unauthorized access, destruction, use,
    modification, or disclosure.
        (2) Delete, within a reasonable time period, a
    student's covered information if the school or school
    district requests deletion of covered information under
    the control of the school or school district, unless a
    student or his or her parent or legal guardian consents to
    the maintenance of the covered information.
        (3) Publicly disclose material information about its
    collection, use, and disclosure of covered information,
    including, but not limited to, publishing a terms of
    service agreement, privacy policy, or similar document.
        (4) Except for a nonpublic school, for any operator who
    seeks to receive from a school, school district, or the
    State Board in any manner any covered information, enter
    into a written agreement with the school, school district,
    or State Board before the covered information may be
    transferred. The written agreement may be created in
    electronic form and signed with an electronic or digital
    signature or may be a click wrap agreement that is used
    with software licenses, downloaded or online applications
    and transactions for educational technologies, or other
    technologies in which a user must agree to terms and
    conditions before using the product or service. Any written
    agreement entered into, amended, or renewed must contain
    all of the following:
            (A) A listing of the categories or types of covered
        information to be provided to the operator.
            (B) A statement of the product or service being
        provided to the school by the operator.
            (C) A statement that, pursuant to the federal
        Family Educational Rights and Privacy Act of 1974, the
        operator is acting as a school official with a
        legitimate educational interest, is performing an
        institutional service or function for which the school
        would otherwise use employees, under the direct
        control of the school, with respect to the use and
        maintenance of covered information, and is using the
        covered information only for an authorized purpose and
        may not re-disclose it to third parties or affiliates,
        unless otherwise permitted under this Act, without
        permission from the school or pursuant to court order.
            (D) A description of how, if a breach is attributed
        to the operator, any costs and expenses incurred by the
        school in investigating and remediating the breach
        will be allocated between the operator and the school.
        The costs and expenses may include, but are not limited
        to:
                (i) providing notification to the parents of
            those students whose covered information was
            compromised and to regulatory agencies or other
            entities as required by law or contract;
                (ii) providing credit monitoring to those
            students whose covered information was exposed in
            a manner during the breach that a reasonable person
            would believe that it could impact his or her
            credit or financial security;
                (iii) legal fees, audit costs, fines, and any
            other fees or damages imposed against the school as
            a result of the security breach; and
                (iv) providing any other notifications or
            fulfilling any other requirements adopted by the
            State Board or of any other State or federal laws.
            (E) A statement that the operator must delete or
        transfer to the school all covered information if the
        information is no longer needed for the purposes of the
        written agreement and to specify the time period in
        which the information must be deleted or transferred
        once the operator is made aware that the information is
        no longer needed for the purposes of the written
        agreement.
            (F) If the school maintains a website, a statement
        that the school must publish the written agreement on
        the school's website. If the school does not maintain a
        website, a statement that the school must make the
        written agreement available for inspection by the
        general public at its administrative office. If
        mutually agreed upon by the school and the operator,
        provisions of the written agreement, other than those
        under subparagraphs (A), (B), and (C), may be redacted
        in the copy of the written agreement published on the
        school's website or made available at its
        administrative office.
        (5) In case of any breach, within the most expedient
    time possible and without unreasonable delay, but no later
    than 30 calendar days after the determination that a breach
    has occurred, notify the school of any breach of the
    students' covered information.
        (6) Except for a nonpublic school, provide to the
    school a list of any third parties or affiliates to whom
    the operator is currently disclosing covered information
    or has disclosed covered information. This list must, at a
    minimum, be updated and provided to the school by the
    beginning of each State fiscal year and at the beginning of
    each calendar year.
(Source: P.A. 100-315, eff. 8-24-17.)
 
    (105 ILCS 85/26 new)
    Sec. 26. School prohibitions. A school may not do either of
the following:
        (1) Sell, rent, lease, or trade covered information.
        (2) Share, transfer, disclose, or provide access to a
    student's covered information to an entity or individual,
    other than the student's parent, school personnel,
    appointed or elected school board members or local school
    council members, or the State Board, without a written
    agreement, unless the disclosure or transfer is:
            (A) to the extent permitted by State or federal
        law, to law enforcement officials to protect the safety
        of users or others or the security or integrity of the
        operator's service;
            (B) required by court order or State or federal
        law; or
            (C) to ensure legal or regulatory compliance.
        This paragraph (2) does not apply to nonpublic schools.
 
    (105 ILCS 85/27 new)
    Sec. 27. School duties.
    (a) Each school shall post and maintain on its website or,
if the school does not maintain a website, make available for
inspection by the general public at its administrative office
all of the following information:
        (1) An explanation, that is clear and understandable by
    a layperson, of the data elements of covered information
    that the school collects, maintains, or discloses to any
    person, entity, third party, or governmental agency. The
    information must explain how the school uses, to whom or
    what entities it discloses, and for what purpose it
    discloses the covered information.
        (2) A list of operators that the school has written
    agreements with, a copy of each written agreement, and a
    business address for each operator. A copy of a written
    agreement posted or made available by a school under this
    paragraph may contain redactions, as provided under
    subparagraph (F) of paragraph (4) of Section 15.
        (3) For each operator, a list of any subcontractors to
    whom covered information may be disclosed or a link to a
    page on the operator's website that clearly lists that
    information, as provided by the operator to the school
    under paragraph (6) of Section 15.
        (4) A written description of the procedures that a
    parent may use to carry out the rights enumerated under
    Section 33.
        (5) A list of any breaches of covered information
    maintained by the school or breaches under Section 15 that
    includes, but is not limited to, all of the following
    information:
            (A) The number of students whose covered
        information is involved in the breach, unless
        disclosing that number would violate the provisions of
        the Personal Information Protection Act.
            (B) The date, estimated date, or estimated date
        range of the breach.
            (C) For a breach under Section 15, the name of the
        operator.
        The school may omit from the list required under this
    paragraph (5) (i) any breach in which, to the best of the
    school's knowledge at the time of updating the list, the
    number of students whose covered information is involved in
    the breach is less than 10% of the school's enrollment,
    (ii) any breach in which, at the time of posting the list,
    the school is not required to notify the parent of a
    student under subsection (d), (iii) any breach in which the
    date, estimated date, or estimated date range in which it
    occurred is earlier than July 1, 2021, or (iv) any breach
    previously posted on a list under this paragraph (5) no
    more than 5 years prior to the school updating the current
    list.
    The school must, at a minimum, update the items under
paragraphs (1), (3), (4), and (5) no later than 30 calendar
days following the start of a fiscal year and no later than 30
days following the beginning of a calendar year.
    (b) Each school must adopt a policy for designating which
school employees are authorized to enter into written
agreements with operators. This subsection may not be construed
to limit individual school employees outside of the scope of
their employment from entering into agreements with operators
on their own behalf and for non-K through 12 school purposes,
provided that no covered information is provided to the
operators. Any agreement or contract entered into in violation
of this Act is void and unenforceable as against public policy.
    (c) A school must post on its website or, if the school
does not maintain a website, make available at its
administrative office for inspection by the general public each
written agreement entered into under this Act, along with any
information required under subsection (a), no later than 10
business days after entering into the agreement.
    (d) After receipt of notice of a breach under Section 15 or
determination of a breach of covered information maintained by
the school, a school shall notify, no later than 30 calendar
days after receipt of the notice or determination that a breach
has occurred, the parent of any student whose covered
information is involved in the breach. The notification must
include, but is not limited to, all of the following:
        (1) The date, estimated date, or estimated date range
    of the breach.
        (2) A description of the covered information that was
    compromised or reasonably believed to have been
    compromised in the breach.
        (3) Information that the parent may use to contact the
    operator and school to inquire about the breach.
        (4) The toll-free numbers, addresses, and websites for
    consumer reporting agencies.
        (5) The toll-free number, address, and website for the
    Federal Trade Commission.
        (6) A statement that the parent may obtain information
    from the Federal Trade Commission and consumer reporting
    agencies about fraud alerts and security freezes.
    A notice of breach required under this subsection may be
delayed if an appropriate law enforcement agency determines
that the notification will interfere with a criminal
investigation and provides the school with a written request
for a delay of notice. A school must comply with the
notification requirements as soon as the notification will no
longer interfere with the investigation.
    (e) Each school must implement and maintain reasonable
security procedures and practices that otherwise meet or exceed
industry standards designed to protect covered information
from unauthorized access, destruction, use, modification, or
disclosure. Any written agreement under which the disclosure of
covered information between the school and a third party takes
place must include a provision requiring the entity to whom the
covered information is disclosed to implement and maintain
reasonable security procedures and practices that otherwise
meet or exceed industry standards designed to protect covered
information from unauthorized access, destruction, use,
modification, or disclosure. The State Board must make
available on its website a guidance document for schools
pertaining to reasonable security procedures and practices
under this subsection.
    (f) Each school may designate an appropriate staff person
as a privacy officer, who may also be an official records
custodian as designated under the Illinois School Student
Records Act, to carry out the duties and responsibilities
assigned to schools and to ensure compliance with the
requirements of this Section and Section 26.
    (g) A school shall make a request, pursuant to paragraph
(2) of Section 15, to an operator to delete covered information
on behalf of a student's parent if the parent requests from the
school that the student's covered information held by the
operator be deleted, so long as the deletion of the covered
information is not in violation of State or federal records
laws.
    (h) This Section does not apply to nonpublic schools.
 
    (105 ILCS 85/28 new)
    Sec. 28. State Board duties.
    (a) The State Board may not sell, rent, lease, or trade
covered information.
    (b) Except for an employee of the State Board or a State
Board official acting within his or her official capacity, the
State Board may not share, transfer, disclose, or provide
covered information to an entity or individual without a
contract or written agreement, except for disclosures required
by State or federal law.
    (c) At least once annually, the State Board must publish
and maintain on its website a list of all of the entities or
individuals, including, but not limited to, operators,
individual researchers, research organizations, institutions
of higher education, or government agencies, that the State
Board contracts with or has written agreements with and that
hold covered information and a copy of each contract or written
agreement. The list must include all of the following
information:
        (1) The name of the entity or individual. In naming an
    individual, the list must include the entity that sponsors
    the individual or with which the individual is affiliated,
    if any. If the individual is conducting research at an
    institution of higher education, the list may include the
    name of that institution and a contact person in the
    department that is associated with the research in lieu of
    the name of the researcher. If the entity is an operator,
    the list must include its business address.
        (2) The purpose and scope of the contract or agreement.
        (3) The duration of the contract or agreement.
        (4) The types of covered information that the entity or
    individual holds under the contract or agreement.
        (5) The use of the covered information under the
    contract or agreement.
        (6) The length of time for which the entity or
    individual may hold the covered information.
        (7) A list of any subcontractors to whom covered
    information may be disclosed under Section 15 or a link to
    a page on the operator's website that clearly lists that
    information.
    If mutually agreed upon by the State Board and the
operator, provisions of a contract or written agreement, other
than those pertaining to paragraphs (1) through (7), may be
redacted on the State Board's website.
    (d) The State Board shall create, publish, and make
publicly available an inventory, along with a dictionary or
index of data elements and their definitions, of covered
information collected or maintained by the State Board,
including, but not limited to, both of the following:
        (1) Covered information that schools are required to
    report to the State Board by State or federal law.
        (2) Covered information in the State longitudinal data
    system or any data warehouse used by the State Board to
    populate the longitudinal data system.
    The inventory shall make clear for what purposes the State
Board uses the covered information.
    (e) The State Board shall develop, publish, and make
publicly available, for the benefit of schools, model student
data privacy policies and procedures that comply with relevant
State and federal law, including, but not limited to, a model
notice that schools must use to provide notice to parents and
students about operators. The notice must state, in general
terms, the types of student data that are collected by the
schools and shared with operators under this Act and the
purposes of collecting and using the student data. After
creation of the notice under this subsection, a school shall,
at the beginning of each school year, provide the notice to
parents by the same means generally used to send notices to
them. This subsection does not apply to nonpublic schools.
 
    (105 ILCS 85/30)
    Sec. 30. Applicability. This Act does not do any of the
following:
        (1) Limit the authority of a law enforcement agency to
    obtain any content or information from an operator as
    authorized by law or under a court order.
        (2) Limit the ability of an operator to use student
    data, including covered information, for adaptive learning
    or customized student learning purposes.
        (3) Apply to general audience Internet websites,
    general audience online services, general audience online
    applications, or general audience mobile applications,
    even if login credentials created for an operator's site,
    service, or application may be used to access those general
    audience sites, services, or applications.
        (4) Limit service providers from providing Internet
    connectivity to schools or students and their families.
        (5) Prohibit an operator of an Internet website, online
    service, online application, or mobile application from
    marketing educational products directly to parents if the
    marketing did not result from the use of covered
    information obtained by the operator through the provision
    of services covered under this Act.
        (6) Impose a duty upon a provider of an electronic
    store, gateway, marketplace, or other means of purchasing
    or downloading software or applications to review or
    enforce compliance with this Act on those applications or
    software.
        (7) Impose a duty upon a provider of an interactive
    computer service to review or enforce compliance with this
    Act by third-party content providers.
        (8) Prohibit students from downloading, exporting,
    transferring, saving, or maintaining their own student
    data or documents.
        (9) Supersede the federal Family Educational Rights
    and Privacy Act of 1974, or rules adopted pursuant to that
    Act or the Illinois School Student Records Act, or any
    rules adopted pursuant to those Acts.
        (10) Prohibit an operator or school from producing and
    distributing, free or for consideration, student class
    photos and yearbooks to the school, students, parents, or
    individuals authorized by parents and to no others, in
    accordance with the terms of a written agreement between
    the operator and the school.
(Source: P.A. 100-315, eff. 8-24-17.)
 
    (105 ILCS 85/33 new)
    Sec. 33. Parent and student rights.
    (a) A student's covered information shall be collected only
for K through 12 school purposes and not further processed in a
manner that is incompatible with those purposes.
    (b) A student's covered information shall only be adequate,
relevant, and limited to what is necessary in relation to the K
through 12 school purposes for which it is processed.
    (c) Except for a parent of a student enrolled in a
nonpublic school, the parent of a student enrolled in a school
has the right to all of the following:
        (1) Inspect and review the student's covered
    information, regardless of whether it is maintained by the
    school, the State Board, or an operator.
        (2) Request from a school a paper or electronic copy of
    the student's covered information, including covered
    information maintained by an operator or the State Board.
    If a parent requests an electronic copy of the student's
    covered information under this paragraph, the school must
    provide an electronic copy of that information, unless the
    school does not maintain the information in an electronic
    format and reproducing the information in an electronic
    format would be unduly burdensome to the school. If a
    parent requests a paper copy of the student's covered
    information, the school may charge the parent the
    reasonable cost for copying the information in an amount
    not to exceed the amount fixed in a schedule adopted by the
    State Board, except that no parent may be denied a copy of
    the information due to the parent's inability to bear the
    cost of the copying. The State Board must adopt rules on
    the methodology and frequency of requests under this
    paragraph.
        (3) Request corrections of factual inaccuracies
    contained in the student's covered information. After
    receiving a request for corrections and determining that a
    factual inaccuracy exists, a school must do either of the
    following:
            (A) If the school maintains or possesses the
        covered information that contains the factual
        inaccuracy, correct the factual inaccuracy and confirm
        the correction with the parent within 90 calendar days
        after receiving the parent's request.
            (B) If the operator or State Board maintains or
        possesses the covered information that contains the
        factual inaccuracy, notify the operator or the State
        Board of the correction. The operator or the State
        Board must correct the factual inaccuracy and confirm
        the correction with the school within 90 calendar days
        after receiving the notice. Within 10 business days
        after receiving confirmation of the correction from
        the operator or State Board, the school must confirm
        the correction with the parent.
    (d) Nothing in this Section shall be construed to limit the
rights granted to parents and students under the Illinois
School Student Records Act or the federal Family Educational
Rights and Privacy Act of 1974.
 
    Section 99. Effective date. This Act takes effect July 1,
2021.

Effective Date: 7/1/2021