Personal Data of Adolescents in Higher Education: The LGPD and the Use of Digital Media for Teaching Activities and Remote Testing

Zappelini, Thaís Duarte; Schippers, Laurianne-Marie; Silva, Alexandre Pacheco da

doi:10.1590/2317-6172202335

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ARTICLES • Rev. direito GV 19 • 2023 • https://doi.org/10.1590/2317-6172202335 copy

Personal Data of Adolescents in Higher Education: The LGPD and the Use of Digital Media for Teaching Activities and Remote Testing¹ 1 This paper was developed at the Center for Education and Research on Innovation (CEPI - FGV DIREITO SP), by its coordinator and researchers, in the Law, Technology and Society research fields.

DADOS PESSOAIS DE ADOLESCENTES NA EDUCAÇÃO SUPERIOR: LGPD E UTILIZAÇÃO DE MEIOS DIGITAIS PARA ATIVIDADES DE ENSINO E APLICAÇÃO DE PROVAS

Authorship SCIMAGO INSTITUTIONS RANKINGS

Abstract

With the spread of the new Coronavirus, Higher Education Institutions (HEIs) needed to adapt to this reality. The implementation of Emergency Remote Teaching (ERT) in Brazil relied on the experiences of distance education (EaD). Also, there was a significant increase in the use of remote testing tools that rely on monitoring (e-proctoring). This context has generated several concerns regarding the protection of vulnerable data subjects. The main objective of this article is to assess the processing of adolescents’ personal data by HEIs in the context of teaching activities carried out by digital means and the use of remote testing that include the collection of sensitive data. For this purpose, we aim to analyze the protective regime for children and adolescents’ sensitive information in Brazil’s General Personal Data Protection Law (LGPD), the appropriate legal bases for their management, and the best practices to be adopted. As a result, we have concluded that specific consent is not the only legal basis applicable to processing data from minors. However, it represents an important possibility of data management by legal guardians and the protection of underage people. In any case, the principles of necessity and transparency must be part of this choice process.

Keywords
LGPD; adolescents; distance education; emergency remote learning; remote testing

	CHILD	ADOLESCENT
ECA (Child and Adolescent Statute)	A person who is not fully 12 years old (Art. 2, ECA).	A person who is between 12 and not fully 18 years old (Art. 2, ECA).
CC (Civil Code)	Absolutely incapable of personally exercising the acts of civil life (Art. 3, CC), and must be represented by their parents/legal guardians.	Relatively incapable of certain acts of civil life or how to exercise them (Art. 4, I, CC).
LGPD	Rule (Art. 14, § 1): The processing of personal data of children must be carried out with the specific and prominent consent given by at least one of the parents or by the legal guardian. Exceptions to the law (waiver of consent): to contact the parents or legal representatives or for their protection.	Although section III of Chapter II of the law RELATES THE “processing personal data of children and adolescents”, it does not include the latter in the rule of Art. 14,§ 1. Considering the best interest and the comprehensive, special, and priority protection regime for children and adolescents in the Brazilian legal system, it is recommended to use this rule for children under 16, who are absolutely incapable.

	DEFINITION	LEGAL MILESTONES	CHARACTERISTICS
Distance Learning	The didactic-pedagogical mediation occurs with the use of information and communication means and technologies, allowing education professionals to reach students in different places and time zones.	Provision in Law No. 9,394, of December 20th, 1996. Regulated by Decree No. 9,057, of May 25th, 2017.	Interested HEIs need, as a rule, to request specific accreditation from the Federal Government Union and may offer the course load in distance learning modality according to the pedagogical and curricular organization of their on-site undergraduate courses, up to a limit of 40% of the total course load (Art. 2 of MEC Ordinance No. 2.117, of March 6th, 2019).
ERT	This modality is admitted on an exceptional basis and refers to the replacement of on-campus courses in progress with classes that use information and communication means and technologies.	Ordinance No. 343/2020 and Provisional Measure No. 934/2020.	Exceptionally for the LENGTH of the authorization period. HEIs must provide students with tools that allow them to monitor the content offered and carry out assessments (Art. 1, § 2, of Ordinance No. 343/2020 of COE-MEC).

Modality	OPERATION	DATA	LEGAL BASIS	LEGAL BASIS UNDER 16 YEARS OF AGE
Distance Learning	Enrollment	RG (ID), CPF (social SECURITY NUMBER), Voter Registration Card, School Transcript, High School Certificate, proof of military enlistment and/or dismissal.	Execution of contract or preliminary procedures at the request of the data subject.	Specific and highlighted consent, given by at least one of the parents or legal guardians. Compliance with legal or regulatory obligations.
Distance Learning	Registration/ use of internal systems	Full name, email (personal or provided by the school), enrollment number, login, and password.	Execution of contract or preliminary procedures at the request of the data subject.	Specific and highlighted consent, given by at least one of the parents or legal guardians. Contract execution
ERT	Continuity of service provision	Full name, email (personal or provided by the school), enrollment number, login, and password.	Compliance with Legal or regulatory obligations.	Compliance with legal or regulatory obligations.

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[1] Thaís Duarte Zappelini. Post-Doctoral Fellow at the Lemann Center for Brazilian Studies (University of Illinois at Urbana-Champaign, USA). Ph.D. and Master in Political and Economic Law at Mackenzie Presbyterian University. thaisdz@illinois.edu