Many South Dakota schools use digital learning platforms. The Regental institutions use Brightspace/D2L. The Spearfish School District uses Moodle (which is open source, bless you, Spearfish!). Digital learning platforms, also called virtual learning environments, extend the classroom to a safe, online space where students and teachers can create and share materials, converse, and take care of course administrative tasks.

Digital learning platforms must also be implanting liberal microchips in your kids, because Rep. Lynne DiSanto (R-35/Rapid City) is leading a group of conservatives in proposing House Bill 1184, which would regulate digital learning platforms and allow parents to opt their kids out of using these nefarious dens of digital iniquity.

Section 1 of HB 1184 defines "digital learning platform" as "an interactive digital platform that collects and records any personally identifiable student information." By that definition, Google Drive is an digital learning platform. Teachers use Google Drive all the time as a quick, easy solution for student collaboration and homework submission. It's interactive, students log in with distinct IDs, and they submit essays, slideshows, and other projects under their own names. Arguably, the Internet as a whole could be viewed as a digital learning platform, since websites collect data about the computers from which students log in, how long they visit, and which links they click, not to mention any data the students may enter as they interact with the websites.

Section 2 is where that broad definition gets sticky. HB 1184 would require schools to provide adult students and parents of minor students "a formal written explanation of the goals and capabilities" of any digital learning platform intended for classroom use, "including of any software, whether the software is loaded onto the platform or hosted externally by a third party." Specifically, schools must detail the following:

  1. How the platform works and the platform's principal purpose or purposes;
  2. The title and business address of the school official who is responsible for the platform, and the name and business address of any contractor or outside party maintaining the platform for or on behalf of the school;
  3. The information the software is designed to collect from any student or capture and record about any student, including any data matches with other personally identifiable student information;
  4. Every element of data that the platform or software will collect or record about any student, including personal psychological characteristics; noncognitive attributes or skills such as collaboration, resilience, and perseverance; and physiological measurements;
  5. The purpose of collecting and recording the data;
  6. Every contemplated use or disclosure of the data, the categories of recipients, and the purpose of any use or disclosure;
  7. A full explanation of the privacy policy maintained by the digital-learning provider; and
  8. The policies and practices of the school regarding storage, retrievability, access controls, retention, and disposal of the records collected and recorded by the platform [House Bill 1184, original text, posted 2015.01.30].

There goes my innovation in the classroom. Suppose I find a quick and easy classroom wiki that looks like a good fit for a new assignment I'm doing this month with my students. I have no idea if I'll want to use the wiki in the future; I'd just like to test drive it, see if it's student-friendly. Under HB 1184, I need to research and write-up that eight-point analysis (which, if I responsibly fulfill HB 1184, should run several pages) and send it to the parent/guardian of every student in the school (the bill does not limit notifications for course-specific implementations to students in that course). Never mind—we'll just make posters with construction paper.

Section 3 says any digital learning platform must include "a portal or other mechanism allowing parents access to the platform and to all the content available to the students using the platform." Sure, no problem: I love having parents visit my classroom to see what students are learning and creating. I like students to know that their work could be seen by members of the public, not just by me.

But let's play lawyer: HB 1184 says "all the content available to the students." It doesn't say, "parents may access all content available to their child or children." My casual legal reading says HB 1184 lets me demand access not just to my child's homework submissions but to every other child's classroom work products. If your school runs a secure site like D2L, where grades and comments from instructors are available to students, HB 1184 gives parents access to everyone's grades and comments. (Rep. DiSanto, really, why don't you call me before you post language like this?)

HB 1184 throws our aspirations to 21st-century online learning into complete chaos with Section 4, the opt-out clause:

Unless a school accredited by the state certifies that the platform is essential to the school's educational mission and provides an explanation for the basis of that certification, a student who has reached the age of eighteen, or the parent or guardian of a minor student, may opt out of the use of any digital-learning platform [HB 1184].

Essential? I like to say I can teach anything with chalk and good shoes, but Socrates, the archetype for great teaching, walked around the agora barefoot and didn't write anything down. The Internet could blow up tomorrow, and while my heart would ache, I could still ask kids provocative questions and help them become intelligent citizens. No digital learning platform is "essential" to a school's mission. Thus, under HB 1184, any student can opt out of the use of any digital learning platform, and my plan to turn all South Dakota students into responsible online citizen journalists is foiled. Curses!

Maybe the hearing on House Bill 1184 in House Education will clarify Rep. DiSanto's privacy concerns. But trust me, Rep. DiSanto: I can corrupt your youth whether or not I can require them to log in to Moodle. Perhaps you should drop HB 1184 and turn your intense concerns about privacy to warrantless searches, the burdensome documentation requirements for drivers licenses, and—oh yeah!—your fellow Republican Senator Corey Brown's conversion of petition reform into an invasion of unfortunate political candidates' medical privacy (see Senate Bill 69, Section 19).

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More bipartisan fun: Senator Bernie Hunhoff (D-18/Yankton) has recruited three Democratic colleagues (Sutton, Gibson, and Hawley) and four Republicans (Rampelberg, Deutsch, Hickey, and Wiik) to sponsor Senate Bill 123, which would prohibit employers from demanding access to current or prospective employees' personal online accounts.

SB 123 is a good defense of personal privacy in the workplace. Employers have as much business snooping around the Facebook posts you share only with friends as they do crashing your cocktail party or peeping in your bedroom window. Employers are welcome to read (and comment on! and share!) my public blog posts, but they have no right to ask for the password to my blog control panel. Other states have protected workers from such employer intrusions; South Dakota should, too.

Bonus points to Senator Hunhoff for hard work and cross-party hustle. Our man Bernie has secured Republican co-sponsors on eight of the ten bills he is prime-sponsoring as well as on his one joint resolution, SJR 2, which would put a constitutional amendment to fund education with a corporate profits tax to a public vote. Uff da—that's a whole nother blog post in itself! For now, Democrats, keep learning from Bernie on how to look for allies across the aisle.

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Steve Young report that the City of Sioux Falls is buying your phone data to track your movements around town to make your morning commute and trip to the Mall smoother:

Cellphone towers pinging phones as motorists travel in and around Sioux Falls are producing valuable information on the routes drivers take and how fast they get to their destinations.

It’s data transportation planners are increasingly using to help predict future road use and demands — how long to make access ramps on and off the interstates, for example, or how many turning lanes to include on those ramps [Steve Young, "Cell Phone Data Helps Map Future of Driving in City," that Sioux Falls paper, 2015.01.03].

Don't worry: Sioux Falls government officials never get a look at your personally identifying data. Heavens no: the private companies gathering your data strip your name and number from their data product before the sale, and they fuzz out your exact start and end points. But they don't have to:

[Sioux Falls ACLU director Heather] Smith said cellphone data that tracks locations could reveal if a person is a weekly church goer, a heavy gambler, a regular at a gym, or even who he or she appears to spend time with.

“It’s important to note that Congress has not legislated a standard for cellphone tracking. It’s largely dependent on state by state,” she said. “So generally speaking, the use of individual cellphone data could leave Sioux Falls residents with concerns about government access to their private information” [Young, 2015.01.03].

Mayor Huether could buy more detailed information about Scott Ehrisman's weekly travel habits. Mayor Huether could buy more detailed data, divide distance by time, mass-mail speeding tickets to every phone user who gets across town in under fifteen minutes. He could buy cell phone data to calculate road usage and send every driver a bill for road usage, essentially turning every street into a toll road. No federal legislation stops him. The Obama Administration says (and the courts so far agree) cell phone users have no reasonable expectation of locational privacy. The only things stopping Mayor Huether from such invasions of privacy are cost and good will:

At this point, Sioux Falls officials don’t have any plans to seek more such available data.

“Cost is always a factor in everything,” he said. “We’re seeing communities that are starting to go down that road and, from my standpoint, we’re watching what’s happening with them and how they’re using the data. It’s something that we would look at maybe going forward in the future” [Young, 2015.01.03].

Am I a conservative or a liberal if I say we need a harder check on government power here? Are our Congressional delegation and our state legislators insufficiently conservative or insufficiently liberal for not advocating a ban on the sale of our private phone data?

Or is privacy a dead concept, a small price to pay for being able to text "I'm on my way!" five minutes from home as corporations commoditize our life histories?

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Here, have another turkey sandwich...

Pat Powers commits more blogospheric malfeasance with a gratuitous attack on Ann Tornberg worthy of the Stranahan School of "Journalism." If you're able to read past the paralyzing funny headline, in which the man who defines party hackery calls Tornberg and Jeff Barth "Democrat party hacks," you'll find Powers reaching for an excuse to mention "Ann Tornberg" and "sexual assault" in the same paragraph.

Powers drags up a 2005 incident in which some Sioux Falls Roosevelt student-athletes engaged in sexual activity on a school bus on the way home from a football game in Spearfish. The incident led to one player pleading guilty to misdemeanor sexual contact with someone under 16. Students and coaches were disciplined, although, per contract and policy, the district did not publicize that discipline.

Powers then makes out Tornberg to be evil for doing her job as teachers' union leader at the time and defending the privacy rights of employees. He cites this passage from an offline December 2005 article from Dan Lederman's opposition research folder:

Ann Tornberg, president of the Sioux Falls Education Association, said contract provisions to protect an employee’s privacy are crucial. ‘The policy protects the rights of the employee,’ Tornberg said. She said Homan and the school district had followed the letter of the contract. ‘I compliment her for that. They have a high degree of professionalism,’ she said “District: Contract prevents report,” that Sioux Falls paper, 2005.12.10, cited in Pat Powers, "Democrat Party Hacks Trying to Out-Hack Each Other to Be the New SDDP Chair," Dakota War College, 2014.11.28].

If Tornberg's answer bears any fault, it lies in not ripping Superintendent Homan for her incautious damage-control e-mail that alerted the media to the discipline of the coaches. Otherwise, Tornberg spoke simple truth: employee privacy matters. Contract provisions matter. There's no hackery there, and certainly no embrace of sexual misconduct, as Powers so Stranahannily insinuates.

South Dakota Democrats will spend the next couple of weeks debating the relative qualifications of Ann Tornberg and Jeff Barth (and maybe others!) to lead their party to recovery and victory in 2016. Pat Powers will have nothing of intelligence or integrity to add to that debate.

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While Representative Bernie Hunhoff (D-18/Yankton) has asked the Board of Regents to release all of its files pertaining to the Darley v. SDIBI litigation (and while I'd be happy for now just to get Darley's 17.5-hour deposition of Joop Bollen), Mr. Montgomery and that Sioux Falls paper are taking another tack, asking the Board of Regents for the Conflicts of Interest Disclosure forms that Bollen would have signed during his Regental employment from 1994 (or whenever the Regents implemented this paperwork) through 2009.

The Regents have said nope:

...the Board of Regents rejected the Argus Leader's open records request, saying an exemption in South Dakota's open records law protects them from disclosing those documents.

Bollen's forms, Regents general counsel Jim Shekleton wrote in a letter, are "personnel information" and thus not subject to required public disclosure.

South Dakota law makes all government documents public records but includes a long list of exceptions. Among those documents not required to be disclosed are "personnel information other than salaries and routine directory information."

"The documents that you request are not public records," Shekleton wrote [David Montgomery, "Regents Deny Bollen Conflict-of-Interest Forms Request," that Sioux Falls paper, 2014.10.01].

We don't necessarily need Bollen's conflict-of-interest forms to recognize that he did indeed have a conflict of interest when he signed a no-bid contract assigning the duties the state was paying him to do at NSU to SDRC Inc., his own newly formed private company, in January 2008. Seeing the form Bollen handed the Regents would simply reveal whether Bollen compounded his sins by concealing them, or whether the Regents knew full well what Bollen was doing.

I appreciate the Regents' respect for the privacy of their employees. Certain personnel information should remain private, between employer and employee. But the Regents could satisfy the public interest without revealing any new information. Bollen's ownership of SDRC Inc. and any other corporation is a matter of public record. The Regents could release the conflict-of-interest forms with any private information (like Social Security number or employer ID numbers) redacted but leave the names of the corporations Bollen mentioned, if any. Care to reconsider, Regents?

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John Hult exposes a glaring hole in HIPAA, the federal law that protects your medical privacy. The law requires your doctor to keep your medical history under wraps—not talk about your case outside of the office, not plunk your files down in front of reporters at a press conference, etc.

But Hult finds that if you're late on paying your medical bill and the hospital or clinic takes you to court for payment, all privacy bets are off:

Health care providers, health plans and health care clearing houses are barred from releasing confidential medical information, said Paul Stephens of the Privacy Rights Clearing House.

Collection agencies don’t fall under the privacy provisions of the Health Insurance Portability and Accountability Act, or HIPPA.

“Once you get into the judicial system, it would be up to the law and judge in that jurisdiction to determine what can be done with the information and how it’s handled,” Stephens said [John Hult, "Privacy Risk Rises with Push for Online Medical Records," that Sioux Falls paper, 2014.06.21].

Hult says the new electronic filing system adopted by South Dakoa's courts makes it easier for curious parties to access the medical information available in court documents. But First Circuit administrator Kim Allison says we shouldn't worry:

Online records will be easier to access, but a search by name alone won’t give the public access. Those searching records online need a specific case number, which generally would require a $20 background search on either the plaintiff or defendant.

That’s one reason why Allison doubts that individual debtors should worry about their personal information being widely available.

“Realistically, no one is going to look at small claims except the parties,” Allison said [Hult, 2014.06.21].

Ms. Allison misreads public concerns about privacy. We don't protect privacy with assumptions that nobody is going to look. We protect privacy by putting up curtains. Realistically, if the information is out there, someone (private investigators, bloggers, folks with axes to grind) can get it and publish it. HIPAA says our medical information should not be subject to such risk.

Hult notes that South Dakota law already protects some confidential information in court filings, like Social Security numbers and bank account information. It would be an easy and responsible step to add medical information, like the treatments and procedures your doctor has performed for you, to that list of protected information. Legislature, add courtroom medical information protections to your 2015 to-do list.

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Jonathan Ellis shines a harsh light on the culture of secrecy with which state medical boards and hospitals shield doctors from facing the consequences of their malpractice. Focusing on the "trail of pain" left by surgeon Allen Sossan, Ellis shows that Nebraska and South Dakota boards that review doctors' performance seem more concerned about protecting doctors' privacy than protecting patients' lives.

Ellis's report includes stories of patients who were paralyzed or killed by Sossan's shoddy and unnecessary surgeries. Complaints to the Nebraska licensing board did not result in action against Sossan's license. When Sossan came to practice in Yankton, Avera Sacred Heart Hospital allowed him in, despite the grim stories that attached to his name:

They delayed granting him privileges, but after about a year, Sossan threatened to sue. Matt Michels, a lawyer for Avera Sacred Heart, told the executive committee that Sossan probably would prevail in court under laws that bar organizations from restraining trade. The problem for the executive committee was this: Nebraska’s licensing board had not taken action against Sossan’s license, and Faith Regional had not reported adverse activity, so Avera didn’t have grounds to reject his request for credentials [Jonathan Ellis, "Secrecy Protects Surgeon's Trail of Pain," that Sioux Falls paper, 2014.03.23].

Yes, that Matt Michels. Now Lieutenant Governor Matt Michels.

But don't blame him; blame the licensing system and the medical culture that insulates doctors from punishment and bad press and ties the hands of administrators and institutions would try to protect patients from bad doctors.

* * *
By the way, one lawyer who successfully sued Sossan for killing a patient with unnecessary surgeries has managed to pierce the institutional veil of secrecy and discover that Sossan's entire career may be based on cheating on a test:

Tim James, a Yankton lawyer who represented Bockholt’s children and who is representing other clients against Sossan, uncovered records showing that Sossan — who then went by the name Alan Soosan — was arrested while in college in the early 1980s for felony grand theft and burglary. Sossan was arrested in Florida, according to a police report, for breaking into the biology department and stealing a test. “What made it really interesting was that it was a core requirement to get into medical school,” James said. “It’s not like he was stealing a French test” [Ellis, 2014.03.23].

As a French teacher, I object to the characterization of my work products as trivial.

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In the "We Don't Do That Already?" Department, the Legislative Planning Committee offers House Bill 1011, a bill to help our technical schools promote themselves the same way our public universities do.

Since 2002, state law has required South Dakota school districts to provide lists of the names and mailing addresses of their students in grades 7 through 12 to the Board of Regents. The Regents then use that information "inform the parents and guardians of any such student in any public middle school and high school about the courses needed to prepare for postsecondary-level work and about the benefits of such preparation."

Somebody must have noticed that the vo-techs don't get that valuable mailing list of their primary market. Somebody must have also noticed that granting that favor to our universities doesn't fit with Governor Dennis Daugaard's support for vo-tech education.

Thus, HB 1011 thus directs the school districts to CC those mailing lists to the Secretary of Education, who is to forward those lists to Southeast, Lake Area, Mitchell, and Western Dakota, who are then to use that information the same way the Regents do.

Just as I can see some folks surprised we don't already do that, I can imagine some of my conservative friends raising an eyebrow and asking why we're letting the schools hand out this information to anyone, Regental or otherwise. The law already removes from the distribution list any child whose parents have opted out of directory information sharing. But I'm counting on the folks alarmed by data collection provisions of Common Core to grab HB 1011, hoghouse it, and ban the distribution of student information to anyone!

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