Guidelines for Recording Lectures, Seminars, and Studios¶

Whenever individuals can be identified by their image, data protection laws and regulations may apply. This includes not only images produced through photography and videography, but also images made by recording online classes, seminars, and studio sessions. Even when the recording is made for a student's benefit (e.g., so they can attend a class remotely from a different time zone, or so an instructor can evaluate their performance), requirements such as notice, consent, and restrictions on distribution may apply.

General guidance¶

The following guidance applies to all class recordings:

Recordings should be made using a New School-branded Zoom account (accessed by logging into newschool.zoom.us). Zoom is an official New School application and includes FERPA protections.
Applications other than New School Zoom (e.g., FaceTime, Skype, consumer Zoom accounts, etc.) should not be used, as they generally do not comply with the information security and privacy safeguards required by state, federal, and international laws and regulations or university policies.
All recordings that will be kept as education records should be downloaded and stored in an appropriate “permanent” location (wherever other education records are stored); Zoom is not a long-term storage platform.
Recordings that will be shared with students, parents, or other instructors should be shared via Zoom (with appropriate access controls, such as a password) or by uploading them to Canvas or the New School G Suite platform. They should not be sent via email or shared via non-New School applications (including personal Google accounts).
All recordings that are not being kept as education records should be deleted when no longer needed (no later than shortly after the semester ends).

Recording lectures, seminars, or studio sessions to support asynchronous learning¶

Class recordings, including conventional audio/video recordings and recordings made by online web conferencing platforms, made for the sole use of the instructors, Teaching Assistants, Teaching Fellows, and enrolled students in a particular section or single course—that will be destroyed at the conclusion of the course—do not require consent from students. The Legal Basis for these recordings is “legitimate interests.”

If classes are to be recorded for any purpose other than (or in addition to) making the session available to students in the class for instructional use, or if the recording will be kept beyond the end of the course, the Legal Basis is “consent.” Students must be provided with a privacy notice describing the specific purpose(s) of the recording and to whom it will be disclosed and their written opt-in consent must be obtained. A single consent form for the entire semester is sufficient; the consent form must be maintained as a business record of the university.

Tip

The Information Security and Privacy Office requires the use of OneTrust’s “Universal Consent Manager” to obtain consent from Data Subjects and maintain consent records university-wide. Contact the ISPO for further information.

If a recording only includes course materials and the voice or image of the instructor, and there is no direct relation (written or otherwise) to any enrolled student, the Family Educational Rights and Privacy Act (FERPA) is not applicable. Students' names, email addresses, and major fields of study (along with certain other attributes) are considered Directory Information under FERPA, and may be mentioned or displayed during the class without the consent of the student. Student information not classified as Directory Information (such as grades), however, should not be discussed or shown.

Caution

While the Directory Information exemption applies to students generally, any student may file a Request to Withhold Disclosure of Directory Information with the Office of the Registrar, which prohibits the university from disclosing this information without the student's prior written consent. Course instructors should ask their students if anyone has filed one of these requests prior to mentioning or displaying any student information in a recorded class.

Course instructors should communicate to students that the class is being recorded to meet the internal needs of both synchronous and asynchronous learning. Additionally, faculty should communicate the limited use of the recording as well as the destruction of the recording at the end of the semester. This communication should be made at the start of every recorded session.

If an instructor intends to circulate a class recording after a session, the recording should only be shared in a secured manner with other students enrolled in a given class. Class recordings should not be posted on a publicly accessible website, or similarly unsecured locations.

Recording students may create education records¶

As with any other “education record” under the Family Educational Rights and Privacy Act (FERPA), a recording of a student is an education record, subject to specific exclusions, when the recording is:

directly related to a student; and
maintained by an educational agency or institution or by a party acting for the agency or institution.

The Legal Basis for recordings that are directly related to a student that will be kept and maintained as education records (e.g., recordings of performances or one-on-one sessions) and/or that will be kept for demonstration purposes, use in future courses, etc. is “consent.” Students (or their parents) must be provided with a privacy notice describing the specific purpose(s) of the recording and to whom it will be disclosed and their written opt-in consent obtained. A single consent form for the entire semester is sufficient; the consent form must be maintained as a business record of the university.

Tip

The Information Security and Privacy Office requires the use of OneTrust’s “Universal Consent Manager” to obtain consent from Data Subjects and maintain consent records university-wide. Contact the ISPO for further information.

FERPA does not define what it means for a record to be “directly related” to a student. In the context of photographs and video recordings, determining if a visual representation of a student is directly related to a student (rather than just incidentally related) is often context-specific, and certain types of photos and videos should be examined on a case by case basis to determine if they directly relate to any of the students depicted therein. Among the factors that may help determine if a photo or video should be considered “directly related” to a student are the following:

The New School uses the photo or video for disciplinary action (or other official purposes) involving the student (including the victim of any such disciplinary incident);
The photo or video contains a depiction of an activity:
- that resulted in The New School’s use of the photo or video for disciplinary action (or other official purposes) involving a student (or, if disciplinary action is pending or has not yet been taken, that would reasonably result in use of the photo or video for disciplinary action involving a student);
- that shows a student in violation of local, state, or federal law;
- that shows a student getting injured, attacked, victimized, ill, or having a health emergency;
The person or entity taking the photo or video intends to make a specific student the focus of the photo or video (e.g., ID photos, or a recording of a student presentation); or
The audio or visual content of the photo or video otherwise contains personally identifiable information contained in a student’s education record.

A photo or video should not be considered directly related to a student in the absence of these factors and if the student’s image is incidental or captured only as part of the background, or if a student is shown participating in school activities that are open to the public and without a specific focus on any individual.

Maintained by an educational agency or institution¶

To be considered an education record under FERPA, The New School, or a party acting for the university, also must maintain the record. Thus, a photo or video taken by a parent at a university event would not be considered an education record, even if it is directly related to a particular student, because it is not being maintained by the university or on the university’s behalf. If, however, the parent’s photo shows two students fighting at the event, and the parent provides a copy of the photo to the university, which then maintains the photo in the students’ disciplinary records, then the copy of the photo being maintained by the university is an education record.

References¶

U.S. Department of Education, FAQs on Photos and Videos under FERPA

Document history

Date	Author	Description
Jul 2020	D. Curry	Initial publication