The LLR Legal Study Update

1. The LLRLegal StudyUpdate Andrew Charlesworth Senior Research Fellow, Centre for IT & Law University of Bristol JISC MLEs for Lifelong Learning Programme Meeting Manchester 24th June 2004

2. Purpose of Study • Identify & assess legal risks arising from the development of a national LLR. • Assess legal risks arising in relation to wider use of LLR data - linkages to external data sources. • Assess perceptions of legal/extralegal risks/benefits of LLR amongst stakeholders, regulators & other interested parties. • Liaise with & provide guidance & support to existing JISC MLE/LLR projects etc. • Produce strategic reports on the key legal issues likely to affect the direction and viability of the LLR

3. Workpackages • The study will carry out 4 workpackages: • Project Killer Workpackage - legal risks to the main objectives of the LLR. Deliverable - Report. • Aspect Killer Workpackage - legal risks relating to wider use of LLR data. Deliverable - report & guidance documentation. • Legal Aspects of Metadata Workpackage - LLR transcript/PDP metadata - best practice for collection, processing & disposal of learner info. in line with relevant law. Deliverable - Report. • Application Profiles Workpackage - legal aspects of generic application profiles, including vocabularies. Deliverable - guidance documentation.

4. Project Killer Report • Assessment of legal risks that could derail a national LLR system • Main areas of legal risk arising from the proposed LLR concept: • Administrative/management framework • Data protection, privacy and confidentiality • User accessibility and disabilities • The international dimension

5. Context of Legal Risk • Legal system doesn’t operate in a vacuum – both development and application. • As with national ID cards much rests on perceptions of general public: • Valuable resource/administrative boondoggle • State or commercial intrusion into privacy • Discriminatory or exclusionary mechanism • Lack of info + lack of trust likely to mean legal problems.

6. Difficulty of assessing legal risk • Purpose and functions of a national LLR system currently remain unfocussed. • Difficult to: • make definitive assessments of the nature and scope of legal issues, or • develop protocols for determining acceptable types of future data use/LLR system change • This will have to be addressed in order to: • provide reassurance to learners that their data will be fairly and lawfully dealt with, and • permit ESPs to undertake informed risk assessment and make provision for dealing with potential liability.

7. Liability, Risk & Structure • Failure to understand & address potential legal risks to ESPs will hinder their ability to limit, or provide for, legal liability. • Early development of a practicable technical and administrative structure will be key to the success of a national LLR system. • Simply scaling up existing regional projects is unlikely to provide a suitable national framework without some form of centrally organised infrastructural support, e.g. back-up/archiving.

8. Data Protection Law • A national LLR system will need adequate provision for requirements of DP legislation when: • transferring personal data between ESPs • supplying personal data to non-ESP 3rd parties. • Legal issues to be assessed: • Can purposes and functions envisaged for a national LLR system be achieved fairly and lawfully; • Can the technical & administrative structure provide data subjects with adequate means to enforce their legal rights within a highly distributed data system.

9. User Accessibility • A national LLR system will have to be capable of meeting the requirements of • disabled users; • users for whom a LLR transcript/PDP in English is of little or no value; • users who have limited, or no, access to the technological base required to access electronically-held LLR data; and, • users with overseas qualifications, learning experiences, or employment which do not map easily/at all to the national LLR system schema

10. International Issues • Education is increasingly a trans-national operation, esp. at FE/HE level, with fierce competition for students. • Lack of concerted co-operation between national/regional interest groups to assess legal risks arising at trans-national level • National LLR system will need to avoid an inadvertent conflict with: • EU free internal market in goods and services • International trade liberalisation in educational services.

11. Overview • It is unlikely that UK law will provide a ‘project killer’ scenario for a national LLR. • It is likely that technical & administrative measures can be used to address or ameliorate potential legal problems. • Alternatively, UK government may adopt legal measures, via primary or secondary legislation, to provide such solutions.

12. Recommendations • R1 - Widening Participation, Greater Publicity • R2 - Need for initial base Function & Purpose Model • R3 - Need for clear advance Technical & Admin. Infrastructure Planning • R4 - Data Protection guidance materials & instruction for LLR projects • R5 – Need for discussion forums for LLR interest groups at a European level to share experiences of legal problems and solutions