by Karen R. Effrem, MD
It was heartening last week to see citizens nationwide come together to provide a great groundswell of support for data privacy in opposing HR 4174, the Foundations for Evidence-Based Policymaking Act (FEPA). Sadly, however, as with the Every Student Succeeds Act, House Leadership was again far more attuned to the desires of Big Data and other special interests than they were to the concerns of average citizens and parents. The House passed FEPA on an unrecorded voice vote with a mere 23 minutes of “debate” (a.k.a. “cheerleading”) in which no one raised a single concern about the bill’s extremely poor handling of privacy as outlined in our one-page document and letter to Congress.
Prior to the vote, the House Majority staff put out a two-page rebuttal to our concerns, as well as those raised in an article by student privacy advocate Cheri Kiesicker, who wrote at Missouri Education Watchdog. Various member offices flung this propaganda portrayed as “facts” into the faces of their constituents with demands that they recant their opposition.
We have taken the time to thoroughly review and rebut this House document. The full document is available HERE. Below is the first page executive summary:
Claim: FEPA doesn’t create a centralized data repository.
Rebuttal: FEPA moves toward the recommendation of the Commission on Evidence-Based Policymaking (Commission) to create a “National Secure Data Service” by 1) requiring each agency to create an evidence-building plan; 2) requiring the OMB Director to unify those plans across the entire federal government; 3) creating a “federal data catalog” and a “national data inventory”; and 4) requiring various councils to recommend how to vastly increase data linking and sharing among federal agencies, with states, and with public and private research entities.
Claim: FEPA doesn’t authorize any new data collection or data analysis.
Rebuttal: Regardless of whether FEPA expressly authorizes new data collection, it 1) incentivizes agency heads to expand, not maintain or minimize, data collection; 2) creates new sources of data for agencies by allowing unfettered access to other agencies’ data; 3) creates a process whereby public and private organizations can access non-public government data; 4) allows the OMB Director to expand the universe of statistical agencies and units; and 5) allows one person, the OMB director, to decide via post-enactment “guidance” what if any data will be exempt from sharing as too private or confidential.
Claim: FEPA “does not overturn an existing student unit record ban, which prohibits the establishment of a database with data on all students,” so parents need not worry about their children’s personally identifiable information (PII).
Rebuttal: FEPA doesn’t overturn this ban – that will almost certainly come later. But its extensive data-linking and data-sharing mandates create a de facto national database, whereby the data stays “housed” within the collecting agency but can be accessed by all. Title III specifically authorizes data “accessed” by federal agencies to be shared. This will threaten the security of not only the student data already maintained by the U.S. Department of Education (USED), but also the data in the states’ longitudinal data systems.
Claim: FEPA doesn’t repeal CIPSEA but rather strengthens it.
Rebuttal: FEPA strengthens nothing. It merely reiterates the same penalties (fine and jail term) in existence since 2002 that have rarely or never been enforced. Worse, FEPA increases threats to privacy and data security by mandating increased access to confidential data and metadata and encouraging unlimited data-swapping with no provisions for data security.
Claim: FEPA “does not respond to the Commission’s recommendations to repeal any ban on the collection or consolidation of data.”
Rebuttal: FEPA directs agency heads to identify and report “any statutory or other restrictions to accessing relevant data . . . ” Because the entire thrust of the bill is to use more and more data for “evidence-building,” the inevitable next step will be to implement the Commission’s recommendation of repealing these pesky statutory obstacles to acquiring “relevant” data.
Claim: FEPA will make better use of existing data.
Rebuttal: The federal government has reams of data showing the uselessness or harm of existing programs. When the government continues to fund those programs despite this data (see Head Start and manifestly ineffective programs under ESEA), there’s no reason – none – to assume it will change its behavior with even more data. And FEPA doesn’t even mention what is considered the gold standard of evaluation – the random-assignment model that would develop more unbiased data to provide better evidence. The bill thus initiates an Orwellian data structure for no apparent purpose.
The bill now moves to the Senate where it has been sent to the Homeland Security and Government Affairs Committee. The House bill was slightly modified compared to the Senate version [S 2046, sponsored by Senator Patty Murray (D-Wash.)]. However, we have been told that either version may be brought directly to the Senate floor and bypass committee at any time. This legislation is clearly on a fast track.
That is why it is imperative that concerned citizens begin contacting their US Senators on Monday, November 27th, to oppose this bill and begin now to contact President Trump to veto this legislation should it be passed by the Senate. Please remind the president of his strong concern for and promise to protect data privacy as stated in this video:
This bill’s supporters also claim it will increase transparency. However, the only transparency it increases is to the private data of the American people, which even if anonymous, was collected in identifiable form. FEPA expands the swamp by increasing government control and monitoring of individual American citizens, and it must be stopped.