Legal Issues of Lifelong Learner RecordsePortfolios

1
Legal Issues of Lifelong Learner
Records/e-Portfolios

• Andrew Charlesworth
• Centre for IT Law
• University of Bristol
• CETIS PEDAGOGY Forum 5th Meeting
• e-Portfolios pedagogical and social issues

2
LLR Legal Study

• Identify assess legal risks in development of
  national Lifelong Learner Record.
• Assess legal risks arising in relation to wider
  use of LLR data - linkages to external data
  sources.
• Assess perceptions of legal/extralegal
  risks/benefits of LLR amongst stakeholders,
  regulators other interested parties.
• Liaise with provide guidance support to
  existing JISC MLE/LLR projects etc.
• Produce strategic reports on the key legal issues
  likely to affect the direction viability of the
  LLR

3
Workpackages

• The study will carry out 4 workpackages
• Project Killer Workpackage - legal risks to the
  main objectives of the LLR. Deliverable -
  Report.
• Aspect Killer Workpackage - legal risks relating
  to wider use of LLR data. Deliverable - report
  guidance documentation.
• Legal Aspects of Metadata Workpackage - LLR
  transcript/PDP metadata - best practice for
  collection, processing disposal of learner
  info. in line with relevant law. Deliverable -
  Report.
• Application Profiles Workpackage - legal aspects
  of generic application profiles, including
  vocabularies. Deliverable - guidance
  documentation.

4
Legal Issues

• Areas of legal risk arising from a national
  LLR/ePortfolio scheme
• Administrative/management framework
• Data protection, privacy and confidentiality
• Ownership and IPR in contents
• User accessibility and disabilities
• The international dimension

5
Legal Issues II

• Administrative/management framework
• Sustainable/scaleable technology framework
• Nature of data storage silo, snowball, main
  store
• Software core proprietary/OSS/combination
• Front-end linkage software issues
  suitability/security development standards.
• Access controls staff/learners/others
• Location of risk and liability w/i framework
• Ensuring certainty between institutions
  permitting effective risk management/liability/ins
  urance.
• Impact of failure, closure or merger of parties

6
Legal Issues III

• DP, Privacy Confidentiality
• What may be (has to be) legally held?
• Mandatory/optional fields transfer from
  mandatory to optional over time.
• Necessary procedures for specific data purpose,
  notice, consent, transparency.
• Who may legally access data?
• Learner, institutions, 3rd parties planning for
  assessment of legality/ethics of 3rd party
  access.
• Preventative measures against abuse of access

7
Legal Issues IV

• DP, Privacy Confidentiality
• Technical/metadata measures
• agreed vocabulary mapping of fields between
  LIP specification clauses of standard
  Collection Notice Form
• capturing expressing permissions granted by
  learner through Collection Notice Form as part of
  LLR - amendments to LIP specification?
• Control of ongoing development of legal elements
  of LLR metadata, especially those relating to
  ownership, access and duration.

8
Legal Issues V

• Who owns the ePortfolio/LLR?
• Server based, smart card, flash pen
• Who controls access to the ePortfolio/LLR?
• Learner, institution, government
• Who owns IPRs in various types of content in
  ePortfolio/LLR?
• Institutional IPR polices
• Who polices content abuses, and how?

9
Legal issues VI

• User accessibility and disabilities
• Requirements of relevant legislation
• Disability Discrimination Act 1995
• Special Educational Needs Disability Rights in
  Education Act 2001
• Consideration of both learner institutional
  staff requirements
• Determining likely parameters of substantial
  disadvantage in relation to LLR/ePortfolio use -
  likely high threshold if as important as claimed.
  
• Developers of learner/staff interfaces to LLR
  data

10
Legal Issues VII

• International Dimension
• Diversity in learner/provider population
• Geographical as well as timeline expansion of LLR
• Provision of accessibility to LLR to non-UK
  students (notably EU/EEA) non-discrimination.
• Provision of accessibility to LLR to non-UK
  educational bodies non-discrim./trade
  violations?
• Mapping non-UK/EU/EEA qualifications which may
  not readily fit the LLR schema.
• Requirement to consider EU (WTO?) developments
  trade in educational services

11
Project Killers?

• A range of legal issues may affect the
  development of a national LLR/ePortfolio - none
  are de facto project killers.
• But poor LLR development strategy in tandem with
  those legal issues may cause significant/fatal
  problems
• Poor stakeholder dialogue/lack of public
  engagement
• No clear purpose/function development plan
• No clear admin/technical infrastructure plan
• Incoherent hi-level policy on DP/privacy etc.
• Parochial partisan national implementation

12
Strategy Points

• Greater transparency in the planning and
  development process for a national LLR system
• A unified approach to the provision of
  information and the stimulation of debate
  significantly increases the effectiveness of this
  approach
• A clear definition of the purpose and functions
  of a national LLR system to allow for definitive
  assessments of the nature and scope of particular
  legal risks
• Legal certainty about allocation of risk and
  liability is essential for ESPs to make provision
  to meet their legal responsibilities technically,
  administratively and fiscally.
• The key legal risk areas to address will be the
  data transfer interfaces between parties with
  access to learner data from the LLR system.

13
Strategy Points

• Clear policy on DP, privacy and confidentiality
  issues will have to be an integral part of
  pre-development planning for an LLR system
• Whether a national centralised LLR/ePortfolio
  database or a unique national learner identifier
  are good or bad are political not legal
  questions.
• User accessibility issues will be an important
  part of the design process for both the main LLR
  system and the ESP interfaces for users.
• ESP is fast becoming a global business, early
  international-level discussion may prevent
  unnecessary longer-term problems