The Future of Education Series: Part Three – AI and Student Privacy: Ensuring Compliance with Australian Privacy Principles and Parental Consent

Education Law

minutes reading time

DATE PUBLISHED: September 4, 2024

Part Three - Privacy


Key Takeaways

  • Personal information of students is embedded in complex algorithms and stored off-site by commercial Artificial Intelligence (AI) developers.
  • Schools must navigate their responsibilities under the Australian Privacy Principles (APPs) outlined in the Privacy Act 1988 (Cth), ensuring that personal data is handled with integrity, transparency, and accountability.
  • Express parental consent must be obtained before deploying AI systems.

Privacy Risks

An effective AI tool entails generating, capturing and analysing a massive amount of personal data to optimise learning experiences.

Some of the privacy risks of GenAI include:

  • Commercial AI developers routinely violate privacy for private benefit
  • Commercial AI developers routinely violate privacy for private benefit
  • Personal Information is retained by the developer, stored off-site and analysed automatically
  • Personal information is deeply embedded in complex algorithms
  • Unauthorised disclosure of personal information
  • The exploitation of personal information is a fundamental component to many AI developers’ business model.

The Australian Framework for Generative Artificial Intelligence in Schools

The Framework guides schools to ensure that students and others using GenAI tools have their privacy and data protected. The Framework’s guiding statements include:

  • Privacy and data protection
  • Privacy disclosure
  • Protection of student inputs
  • Cyber-security and resilience

Your Privacy Obligations

The Australian Privacy Principles pursuant to the Privacy Act 1988 (Cth) govern standards, rights and obligations around:

  • the collection, use and disclosure of personal information
  • a schools governance and accountability
  • integrity and correction of personal information
  • the rights of individuals to access their personal information.

Without any specific AI legislation, schools must consider their obligations under the APP’s to ensure the appropriate management of personal information.

Schools intending to use AI systems need to obtain the express consent from students and parents. Given that Australian privacy regulations were conceived in an era where AI was not posing a significant risk to an individual’s right to privacy, gaining appropriate consent from parents and students is paramount. Consent must be well informed as a pragmatic approach with students and parents allowing schools to utilise personal information to enhance the learning experience with AI.

What schools Need to do?

Schools need to be proactive to prevent the unauthorised use and disclosure of personal information. This includes:

  • Utilising education specific AI systems which remain transparent around the extent of data collection, storage and use;
  • Understand your obligations under the Australian Privacy Principles;
  • Updating privacy policies;
  • Obtaining express parental consent;
  • Ensuring school communities are proactively informed about how and what data will be collected, used, and shared while using GenAI tools;
  • Monitor student inputs to ensure care when entering information into GenAI tools which may comprise and individuals right to privacy;
  • Ensuring human oversight by conducting regular auditing; and
  • Providing staff, students and parents with the tools to make ethical decisions about privacy.

how can mcw help?

We can provide up to date advice on the development of AI regulations or assist you in creating or updating your school policies to ensure you are adequately safeguarding the risks that AI poses to privacy. We can also provide training to your organisation so that all staff are aware of their obligations to operate and deploy, safe, responsible and ethical AI systems.

Get in touch with us today if you would like to discuss how these changes may impact your school and the steps you should be taking to ensure compliance and to manage risk.

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