In 2002, a U.S. court approved service of process via email. In 2008, an Australian court first allowed for service of process via Facebook and then earlier this week a UK High Court Judge approved service of process via Facebook. Therefore, service of process via electronic means is gaining acceptance around the world and it may only be a matter of time before a U.S. court will allow for service of process via social media.
Before a U.S. court allows service of process via social media it should understand the authentication issues involved. During my discussion with ABC News about this issue I stated, "[a]uthentication is a major issue since you must be sure that the person with whom you are trying to serve online is the same person offline. You don’t want to have someone’s due process rights infringed upon due to not being properly notified.”
Maryland's highest court came out with a seminal decision almost a year ago discussing authentication of social media evidence. The court understood that just because a social media profile appears to be genuine does not make it so. A person must do their due diligence to ensure that a social media account is the real McCoy.
Therefore, before a U.S. judge allows for service via social media the court must ensure that the person being served online is the same person offline. Authentication must not become an afterthought.
To learn more about these issues you may contact me at www.shearlaw.com.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Saturday, February 25, 2012
Tuesday, February 21, 2012
Dharun Rhavi Case Proves Some Universities Must Rethink Their Social Media Policies
Some colleges and universities may have social media policies that violate the U.S. Constitution. As I stated on September 26, 2011, the University of North Carolina's social media policy for its student-athletes is very troubling and every single day that UNC has this policy in place the university is increasing its legal liability.
Schools that require their students to turn over their social media user names, and/or account names, and/or passwords, and/or require students to Facebook Friend university employees and/or download monitoring software onto their personal electronic devices to monitor all of their students' online activity are creating a legal minefield they do not understand.
This week the tragic case of Rutgers' student Tyler Clementi is back in the news. For those not familiar with the matter, I first wrote about it on October 6, 2010 and then again on May 1, 2011. Prosecutors allege that Dharun Rhavi's online activity contributed to Tyler Clementi's suicide. In addition, the prosecution has charged Rhavi with tampering with online evidence.
If Rutgers was monitoring the social media activity of Clementi and/or Rhavi and did not act to stop the online activity that is alleged to have contributed to Clementi's death Rutgers may be sued for negligent social media monitoring. However, if Rutgers was only monitoring the social media activity of some of its students but not all of its students Rutgers may be sued for discrimination. Multiple lawyers and risk professionals have already discussed the tremendous liability schools may encounter social media monitoring their students. Therefore, schools must tread very carefully when creating a social media policy.
To learn more about this issue you may contact me at www.shearlaw.com.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserve
Schools that require their students to turn over their social media user names, and/or account names, and/or passwords, and/or require students to Facebook Friend university employees and/or download monitoring software onto their personal electronic devices to monitor all of their students' online activity are creating a legal minefield they do not understand.
This week the tragic case of Rutgers' student Tyler Clementi is back in the news. For those not familiar with the matter, I first wrote about it on October 6, 2010 and then again on May 1, 2011. Prosecutors allege that Dharun Rhavi's online activity contributed to Tyler Clementi's suicide. In addition, the prosecution has charged Rhavi with tampering with online evidence.
If Rutgers was monitoring the social media activity of Clementi and/or Rhavi and did not act to stop the online activity that is alleged to have contributed to Clementi's death Rutgers may be sued for negligent social media monitoring. However, if Rutgers was only monitoring the social media activity of some of its students but not all of its students Rutgers may be sued for discrimination. Multiple lawyers and risk professionals have already discussed the tremendous liability schools may encounter social media monitoring their students. Therefore, schools must tread very carefully when creating a social media policy.
To learn more about this issue you may contact me at www.shearlaw.com.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserve
Friday, February 3, 2012
Maryland Bills Would Protect Students' Social Media Privacy Rights, Schools, and Taxpayers
The State of Maryland is leading the way nationally to protect the social media privacy rights of students with Senate Bill 434: Institutions of Postsecondary Education-Electronic Account, Service, and Communications Device Privacy Protection and House Bill 310 Public and Non-Public Institutions of Higher Education - Internet and Electronic Privacy Protection.
According to the synopsis of Senate Bill 434 on the Maryland Legislature's website:
Prohibiting an institution of postsecondary education from requiring a student or an applicant for admission to provide access to a personal account or service through an electronic communications device, to disclose any user name, password, or other means for accessing specified accounts or services through an electronic communications device, or to install on specified electronic communications devices software that monitors or tracks electronic content; etc.
According to the synopsis of House Bill 310 on the Maryland Legislature's website:
Prohibiting public and nonpublic institutions of higher education from requiring a student or applicant for admission to provide the academic institution with access to specified Internet sites or electronic accounts through specified electronic devices, to disclose specified password and related information, or to install specified monitoring or tracking software onto specified electronic devices; etc.
These bills still allow students and coaches, school employees, etc... to interact with each other online. This is in contrast to the initial bill that Missouri passed and then revised last year. Since students have the right to engage or not engage with their coaches, school employees, etc... offline they should also have this same right online.
SB 434 and HB 310 would benefit students, applicants, schools, and taxpayers. They would protect a student's and college applicant's privacy rights. The Supreme recently signaled in U.S. v. Jones, that students still have an expectation of privacy in the Social Media Age and that students still have free speech rights while utilizing social media.
Both bills would ensure that colleges and universities do not create a legal duty to monitor all of their students' digital content. Once a school creates a legal duty to monitor all electronic content they may be subject to numerous costly lawsuits. For example, if the University of Virginia was monitoring the electronic content of its former lacrosse players George Huguely and/or Yardley Love and knew or should have known that Huguely may hurt Love then UVA may have had significant legal liability for negligent social media monitoring because it failed to protect Love. If UVA was only monitoring the electronic content of its football and/or basketball players but not its lacrosse players then it may be considered discrimination and UVA may have been sued for not monitoring the electronic content of all of its students.
Taxpayers support the educational system and therefore would benefit from the passage of this legislation because tax dollars should be utilized to educate our children and not be wasted on creating easily avoidable legal liability. In addition, when a school is sued for negligence tax payers may end up footing the bill.
With access comes responsibility. I do not believe that schools that require their students to provide them access to their personal electronic accounts understand the constitutional and legal liability issues involved. If Penn State's legal counsel would have been made aware of the Jerry Sandusky matter at a much earlier stage and was able to inform the athletic department and the administration about the serious legal and financial liability issues involved, Penn State may not be facing their current legal mess and multiple young boys may have been saved from being molested.
As I have stated over and over and over again, educational institutions and society need to fully understand the legal and public policy implications of social media before creating policies that may not only be unconstitutional but also may create tremendous unforeseen legal liability. Too many colleges and universities are already creating a legal quagmire with their social media policies. Now is the time to rectify the situation before schools are left with tremendous legal bills defending unconstitutional policies and tort judgments for negligence.
Unlike China, the United States does not have a Microblog Identification Program that requires its online users to register with the government so it may track its citizens' online speech. Schools that require their students to turn over their social media user names and/or content are acting as though they are based in China and not in the United States. It is time for these schools that are violating the Constitution to stop because our country has a long history of protecting and encouraging free speech from the Federalist Papers to Tinker v. Des Moines Independent Community School District 393 U.S. 503 (1969) to their decisions a few weeks ago to uphold student free speech in the MySpace cases and clearly declare in U.S. v. Jones we still have an expectation of privacy in the Social Media Age.
I encourage everyone who reads this to reach out to Maryland's legislators to voice support for these bills and to lobby your state legislatures to pass similar legislation. These bills are a win for students, schools, and taxpayers.
(Full Disclosure: I am not being paid for my work on this legislation. I believe that the 1st and 4th Amendments still matter in the Social Media Age and I want to protect students, schools, and taxpayers from unforeseen legal issues that may arise if these practices continue. Therefore, I contacted Maryland Senator Ronald Young and Maryland Delegate Shawn Tarrant to notify them about these issues and worked with them to create a common sense solution to this problem that protects the interests of students, schools, and taxpayers.)
To learn more about this issue you may contact me at www.shearlaw.com.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
According to the synopsis of Senate Bill 434 on the Maryland Legislature's website:
Prohibiting an institution of postsecondary education from requiring a student or an applicant for admission to provide access to a personal account or service through an electronic communications device, to disclose any user name, password, or other means for accessing specified accounts or services through an electronic communications device, or to install on specified electronic communications devices software that monitors or tracks electronic content; etc.
According to the synopsis of House Bill 310 on the Maryland Legislature's website:
Prohibiting public and nonpublic institutions of higher education from requiring a student or applicant for admission to provide the academic institution with access to specified Internet sites or electronic accounts through specified electronic devices, to disclose specified password and related information, or to install specified monitoring or tracking software onto specified electronic devices; etc.
These bills still allow students and coaches, school employees, etc... to interact with each other online. This is in contrast to the initial bill that Missouri passed and then revised last year. Since students have the right to engage or not engage with their coaches, school employees, etc... offline they should also have this same right online.
SB 434 and HB 310 would benefit students, applicants, schools, and taxpayers. They would protect a student's and college applicant's privacy rights. The Supreme recently signaled in U.S. v. Jones, that students still have an expectation of privacy in the Social Media Age and that students still have free speech rights while utilizing social media.
Both bills would ensure that colleges and universities do not create a legal duty to monitor all of their students' digital content. Once a school creates a legal duty to monitor all electronic content they may be subject to numerous costly lawsuits. For example, if the University of Virginia was monitoring the electronic content of its former lacrosse players George Huguely and/or Yardley Love and knew or should have known that Huguely may hurt Love then UVA may have had significant legal liability for negligent social media monitoring because it failed to protect Love. If UVA was only monitoring the electronic content of its football and/or basketball players but not its lacrosse players then it may be considered discrimination and UVA may have been sued for not monitoring the electronic content of all of its students.
Taxpayers support the educational system and therefore would benefit from the passage of this legislation because tax dollars should be utilized to educate our children and not be wasted on creating easily avoidable legal liability. In addition, when a school is sued for negligence tax payers may end up footing the bill.
With access comes responsibility. I do not believe that schools that require their students to provide them access to their personal electronic accounts understand the constitutional and legal liability issues involved. If Penn State's legal counsel would have been made aware of the Jerry Sandusky matter at a much earlier stage and was able to inform the athletic department and the administration about the serious legal and financial liability issues involved, Penn State may not be facing their current legal mess and multiple young boys may have been saved from being molested.
As I have stated over and over and over again, educational institutions and society need to fully understand the legal and public policy implications of social media before creating policies that may not only be unconstitutional but also may create tremendous unforeseen legal liability. Too many colleges and universities are already creating a legal quagmire with their social media policies. Now is the time to rectify the situation before schools are left with tremendous legal bills defending unconstitutional policies and tort judgments for negligence.
Unlike China, the United States does not have a Microblog Identification Program that requires its online users to register with the government so it may track its citizens' online speech. Schools that require their students to turn over their social media user names and/or content are acting as though they are based in China and not in the United States. It is time for these schools that are violating the Constitution to stop because our country has a long history of protecting and encouraging free speech from the Federalist Papers to Tinker v. Des Moines Independent Community School District 393 U.S. 503 (1969) to their decisions a few weeks ago to uphold student free speech in the MySpace cases and clearly declare in U.S. v. Jones we still have an expectation of privacy in the Social Media Age.
I encourage everyone who reads this to reach out to Maryland's legislators to voice support for these bills and to lobby your state legislatures to pass similar legislation. These bills are a win for students, schools, and taxpayers.
(Full Disclosure: I am not being paid for my work on this legislation. I believe that the 1st and 4th Amendments still matter in the Social Media Age and I want to protect students, schools, and taxpayers from unforeseen legal issues that may arise if these practices continue. Therefore, I contacted Maryland Senator Ronald Young and Maryland Delegate Shawn Tarrant to notify them about these issues and worked with them to create a common sense solution to this problem that protects the interests of students, schools, and taxpayers.)
To learn more about this issue you may contact me at www.shearlaw.com.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
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