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Legal Features

Virginia Law Places the Privacy of College Students in Jeopardy

By Dave Caddell

Under a new Virginia law, as of July 1, 2006, every college and university in the state will be required to provide state law enforcement officials with the names and Social Security numbers of each of the thousands of students entering their institutions each year. According to the law, its purpose is to help state police track and locate sex offenders. In addition to entering college students, however, the law will also affect ordinary Virginians by requiring the Department of Motor Vehicles to provide the same information to police for each Virginian who applies for a license or change of address.

Supporters of this legislation insist that it is a necessary step to shore-up our colleges and communities from sexual predators. And while most would agree that maintaining peace and security for our children and ourselves is a legitimate and normal interest, by mandating that police have carte blanche access to the private and personal information of thousands of people who have done nothing to bring suspicion upon themselves, this law raises many concerns.

Perhaps foremost among the concerns is that it places the identification and privacy of thousands of innocent individuals at risk. In fact, the Virginia law narrowly escapes the privacy protections already afforded to college students by federal law. Under the Family Education Rights and Privacy Act (FERPA) of 1974, colleges and universities have an affirmative legal obligation to "protect the rights of privacy of students and their families in connection with surveys or data-gathering activities." According to Virginia government officials, however, FERPA does not prohibit the state from providing the private information of entering students to law enforcement officials. This, they contend, is because the Virginia law does not apply to enrolled students, which the federal law protects, but rather students who have accepted an offer of admission but have not yet enrolled. But this is a rather questionable distinction that minimizes the spirit of the federal law's intent to protect the fundamental right of privacy enjoyed by all Americans.

And while Virginia law enforcement officials assure us that the information is in safe hands, recent stories of the government mishandling of private information creates legitimate skepticism of the government's ability to responsibly protect important private information. There have been several instances in the past year alone where trusted government employees and officials have lost critically important private information of citizens. For example, on June 20, 2006, USA Today reported, "Cyberattacks and computer thefts at four Energy Department offices have exposed the personal records of at least 5,500 federal employees and contractors, revealing troubling security flaws at the government agency." And on May 23, 2006, The New York Times broke another major story relating to this problem, writing, "Personal electronic information on up to 26.5 million military veterans, including their Social Security numbers and birth dates, was stolen from the residence of a Department of Veterans Affairs employee."

Furthermore, this policy is merely a microcosm of a much larger privacy concern relating to the manner in which the government claims essentially unfettered access to Americans' private information. Wholesale data searches, information sharing among government agencies and Orwellian data mining are common government methods of digging deeper and deeper into the private lives of ordinary Americans. Casting a broad net is a much easier and efficient method for the government to use in rooting out criminals.

Yet these broad searches for information pointing to criminality, such as the new Virginia law permits, fail to properly consider the rights of innocent Americans and our nation's rich and historical demand for privacy protections and the presumption that one is innocent until proven guilty. By enshrining the Fourth Amendment into the Bill of Rights, America's founders were clearly concerned about protecting the people from excessive and unnecessary government intrusions. According to the Fourth Amendment, Americans have a fundamental right to be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Going even further, it requires the government to demonstrate "probable cause" to justify an intrusion into that privacy right.

More modern laws also illustrate Americans' strong desire for personal privacy from an intruding government as well. Federal laws that protect consumer privacy rights, such as the Fair Credit Reporting Act, the Privacy Act of 1974, the Privacy Protection Act of 1980 and the Electronic Communications Privacy Act of 1986, illustrate this strong demand for privacy by prohibiting providers of services and goods from distributing information to others, including the government barring a specific or compelling need. Wholesale searches such as those granted to Virginia law enforcement officials by the state legislature undermine at best and ignore at worst this fundamental liberty and desire.

For many teens considering the pursuit of higher education in Virginia, there will be much more to worry about than low grade point averages and which social organization to join. As the world grows more digital and technologically advanced, our private information is more vulnerable. While the Virginia legislators who voted in favor of this law no doubt were interested in rounding up and tracking sex offenders, by approving the law they also placed very important private information in danger.

David Caddell is an associate staff attorney at The Rutherford Institute.

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