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1 1 (November 2016)

handle is hein.amenin/aeiaaxj0001 and id is 1 raw text is: Key Points * A federal judge's decision to disclose the complete records of an estimated 10 million California public schoolchildren to a private plaintiff raises serious concerns about privacy and digital security. * A simple two-part framework can help the judiciary properly balance affected parties' privacy interests and cybersecurity concerns against the need for trial discovery. First, the court should protect privacy by limiting the exposure of sensitive and superfluous information. Second, once the court has decided which sensitive data to expose, it must act to protect those data. * These strategies will not prevent all data spills, but they will raise the awareness and protective diligence of all the concerned parties. In this era of big data, how should a judge prudently measure the parties' burdens- including privacy and cybersecurity concerns- and still permit discovery as a legitimate case may demand? It is a simple question of remarkable import. The judiciary is given special privilege as the gatekeeper to this country's and each individual's most guarded information. Even congressional statutes that promote extreme privacy protections carve out a judicial order exception.' But what if the threat of massive privacy invasion of millions was not in some hypothetical future? What if the release of incredibly sensitive data, such as names, Social Security numbers, birth dates, addresses, mental health records, medication lists, disciplinary records, and more, was not a threat, but the very real result of a judicial order? And what if the data to be released were of the most vulnerable population in the United States: children? The scenario is exactly the reality faced by parents and guardians of children who attended any California public school since January i, 2oo8.2 A federal judge ordered the California Department of Education to gather, consolidate, and disclose to the plaintiffs the complete student records of all California public schoolchildren during this time frame-an estimated io million student records.3 The plaintiffs in Morgan Hill Concerned Parents Association v. California Department of Education, a local parent group and a statewide parent association, will have nearly unfettered access to those students' records.4 The case is sympathetic to be sure: a parent organization in the southern tip of Silicon Valley raised concerns that some special education students are not receiving appropriate academic accommodations. A statewide parent organization joined, and the case expanded its focus to the special education accommodations being provided in every California school district. AMERICAN ENTERPRISE INSTITUTE

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