According to the Penn State Daily Collegian, Penn Sate Police seized illegal drugs and paraphernalia from the home of one of their football players. Police had entered the home of a current and former student-athlete to investigate a break-in. Upon realizing there may be illegal drugs, it appears the police obtained a search warrant.
Since in the real world a search warrant is generally required to obtain evidence in one's real home, a search warrant is also generally required in the digital world to search one's password protected digital home. In order for a public school to obtain access to the password protected personal social media and digital accounts (non-school issued) of their student-athletes they may need a court order.
A public school may not require a student to utilize the services of UDiligence, Varsity Monitor, Centrix Social, or any other social media monitoring company in order to keep his or her scholarship and may not retaliate against a student for refusing to provide access absent a court order.
Therefore, if a student at a public school refuses to provide UDiligence, Varsity Monitor, Centrix Social, other social media monitoring companies, or school employees their personal social media or personal digital account information and the school punishes the student in any manner for refusing to do so the student may have multiple causes of action against the school. The 1st, 4th, and 5th amendments along with the Stored Communications Act, the Computer Fraud Abuse Act, and multiple state laws may be implicated in social media monitoring.
To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Monday, March 26, 2012
Friday, March 23, 2012
Facebook Firmly States Employers and Schools May Not Access Password Protected Content
Facebook has firmly come out against those employers and schools who are requiring employees, job applicants, student-athletes, and college applicants to provide them access to personal password protected Facebook accounts. Facebook's statement in part reads:
"If you are a Facebook user, you should never have to share your password, let anyone access your account, or do anything that might jeopardize the security of your account or violate the privacy of your friends."
Social Media Monitoring Companies such as Varsity Monitor, UDiligence, and Centrix Social appear to be advising some of their clients to violate Facebook's Terms of Service, along with the constitutional rights of student-athletes, and the personal privacy rights of student-athletes' Facebook Friends. As I have stated over and over again, in general, employers and public schools may not require access to personal password protected electronic content.
To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
"If you are a Facebook user, you should never have to share your password, let anyone access your account, or do anything that might jeopardize the security of your account or violate the privacy of your friends."
Social Media Monitoring Companies such as Varsity Monitor, UDiligence, and Centrix Social appear to be advising some of their clients to violate Facebook's Terms of Service, along with the constitutional rights of student-athletes, and the personal privacy rights of student-athletes' Facebook Friends. As I have stated over and over again, in general, employers and public schools may not require access to personal password protected electronic content.
To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Friday, March 16, 2012
Dharun Ravi is Found Guilty of Tampering With Evidence For Tweet Deletion
Breaking news. Dharun Ravi has been found guilty of tampering with evidence because he deleted at least one tweet. I first wrote about his case on May 1, 2011. According to the New Jersey Star here is a breakdown of the verdict.
This case should be a wake up call for everyone who utilizes social media, text messages, email, and other digital platforms that your online activities are just as important if not more important than your real world activities because of the digital footprints that are created.
To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
This case should be a wake up call for everyone who utilizes social media, text messages, email, and other digital platforms that your online activities are just as important if not more important than your real world activities because of the digital footprints that are created.
To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Wednesday, March 14, 2012
Multi-Milion Dollar Jury Verdict Against Virginia Tech Proves Schools Should Not Create A Duty To Social Media Monitor
The 2007 Virginia Tech massacre that left 33 dead on campus was a terrible tragedy. Earlier today, a jury found Virginia Tech negligent for its delay in warning its campus about the first shootings. Two of the families of those who were killed were awarded $4 million dollars each by a jury.
This case demonstrates why schools should not utilize the services of social media monitoring companies to review the password protected content of their students. On March 12, 2012, the NCAA stated that there is no "blanket duty on institutions to monitor social networking sites." Therefore, if there is no blanket compliance duty to social media monitor why create a legal duty to do so which may lead to multi-million dollar judgements for negligent social media monitoring?
After the the University of North Carolina Public Infractions Report was released, Varsity Monitor, a company that sells social media monitoring services responded to a Tweet that links to an article where I am quoted by Tweeting, "It is still best practice for the athletic dept to continue to monitor social media for brand and athlete protection & edu" (see below):
Now that two $4 million dollar jury verdicts have been returned against an academic institution for a delay in properly warning its students about a killer being on the loose on campus, imagine if a school follows the above advice by Varsity Monitor and a tragedy occurs that social media monitoring should have warned against but did not? Instead of multiple $4 million dollar jury verdicts would it be multiple $25 million or $50 million or $100 million dollar negligent social media monitoring jury verdicts?
To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
This case demonstrates why schools should not utilize the services of social media monitoring companies to review the password protected content of their students. On March 12, 2012, the NCAA stated that there is no "blanket duty on institutions to monitor social networking sites." Therefore, if there is no blanket compliance duty to social media monitor why create a legal duty to do so which may lead to multi-million dollar judgements for negligent social media monitoring?
After the the University of North Carolina Public Infractions Report was released, Varsity Monitor, a company that sells social media monitoring services responded to a Tweet that links to an article where I am quoted by Tweeting, "It is still best practice for the athletic dept to continue to monitor social media for brand and athlete protection & edu" (see below):
Now that two $4 million dollar jury verdicts have been returned against an academic institution for a delay in properly warning its students about a killer being on the loose on campus, imagine if a school follows the above advice by Varsity Monitor and a tragedy occurs that social media monitoring should have warned against but did not? Instead of multiple $4 million dollar jury verdicts would it be multiple $25 million or $50 million or $100 million dollar negligent social media monitoring jury verdicts?
To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Monday, March 12, 2012
NCAA: Schools Have No Blanket Duty To Monitor Social Networking Sites Of Student-Athletes
The NCAA has stated in the University of North Carolina Public Infractions Report dated March 12, 2012 (page 11), that it "declines to impose a blanket duty on institutions to monitor social networking sites.Consistent with the duty to monitor other information outside the campus setting (beyond on-campus activities such as countable athletically related activities, financial aid, satisfactory progress, etc.), such sites should be part of the monitoring effort if the institution becomes aware of an issue that might be resolved in some part by reviewing information on a site."
In other words, an NCAA member institution's duty to monitor is the same whether its a student's online or offline activities. Nothing more. I praise the NCAA for its decision in this case. The NCAA's decision mirrors the opinion that I stated on September 2, 2011 when I said, "it may be advisable to check up on a student-athlete's public online posts in the same manner as his/her real world activity."
The NCAA's decision today has clearly stated that schools do not need to engage costly social media monitoring services that require students to provide access to their password protected electronic content. The companies that push these services are selling snake oil that is essentially a legal liability time bomb and they are preying off a school's fear. This has lead to some schools violating the constitutional rights of its students.
There is a lack of knowledge regarding social media, compliance, and the law. Unfortunately, several self-serving companies have tried to fill the void in college athletics and these companies have not only provided bad advice that may create tremendous legal liability for their clients but they also incorrectly interpreted NCAA compliance rules. These social media consultants have advised their NCAA member clients to waste tens of thousands of dollars on services they do not need. Every school that has engaged these social media monitoring services may want to demand a full refund from these consultants who do not understand social media, NCAA compliance rules, public policy, or the law.
To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
In other words, an NCAA member institution's duty to monitor is the same whether its a student's online or offline activities. Nothing more. I praise the NCAA for its decision in this case. The NCAA's decision mirrors the opinion that I stated on September 2, 2011 when I said, "it may be advisable to check up on a student-athlete's public online posts in the same manner as his/her real world activity."
The NCAA's decision today has clearly stated that schools do not need to engage costly social media monitoring services that require students to provide access to their password protected electronic content. The companies that push these services are selling snake oil that is essentially a legal liability time bomb and they are preying off a school's fear. This has lead to some schools violating the constitutional rights of its students.
There is a lack of knowledge regarding social media, compliance, and the law. Unfortunately, several self-serving companies have tried to fill the void in college athletics and these companies have not only provided bad advice that may create tremendous legal liability for their clients but they also incorrectly interpreted NCAA compliance rules. These social media consultants have advised their NCAA member clients to waste tens of thousands of dollars on services they do not need. Every school that has engaged these social media monitoring services may want to demand a full refund from these consultants who do not understand social media, NCAA compliance rules, public policy, or the law.
To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Saturday, March 10, 2012
Minnesota School District Sued For Violating the Social Media Privacy Rights Of A Student
A Minnesota school district has allegedly violated the social media privacy rights of one of its students. According to an American Civil Liberties Union press release: "the American Civil Liberties Union of Minnesota filed a lawsuit in Federal District Court against Minnewaska Area Schools and the Pope County Sheriff's office for violating the constitutional rights of a minor student."
The ACLU states, "In early 2011 R.S. posted a comment, while at home, on her Facebook page about her dislike of a school staff member. The school learned about the comment, and R.S. received a detention and was forced to write an apology to the staff member. She was disciplined again when she cursed on her Facebook page, complaining that someone reported her to the school. This time she was given an in-school suspension and was prohibited from attending a school field trip. The ACLU-MN contends that these sanctions violate her First Amendment right to freedom of speech. In a second incident R.S. was brought into a school administrator's office where she was coerced to turn over (against her will) login information to her Facebook and email accounts because of allegations that she had online conversations about sex with another student off-campus. Present at the search was a local deputy along with two school officials."
I find it very troubling that school officials and a local deputy would believe that it is constitutional to require a student to provide them her user name and password of a personal electronic account. If a student is forced to turn over her password to a social media account without a court order what will stop a school from requiring a student to turn over a personal email password and user name without a court order? This behavior is a clear 1st and 4th Amendment and possibly a 5th Amendment violation of the U.S. Constitution.
This behavior is not limited to violating the privacy rights of middle schoolers. According to an MSNBC report, employers and universities across the country are violating the privacy rights employees, students, and applicants.
There may be some situations where requiring access to personal password protected electronic content may be necessary. For example, some high security clearance jobs, some national security positions, and some regulated industries have invasive background checks. However, in the overwhelming majority of positions, there should be protection against requiring access to password protected electronic content. With access comes responsibility, so employers and schools that demand this information may open themselves up to unforeseen legal liability and may create new legal duties where none existed before. Therefore, why risk a multi-million dollar lawsuit and judgement?
There may be some situations where requiring access to personal password protected electronic content may be necessary. For example, some high security clearance jobs, some national security positions, and some regulated industries have invasive background checks. However, in the overwhelming majority of positions, there should be protection against requiring access to password protected electronic content. With access comes responsibility, so employers and schools that demand this information may open themselves up to unforeseen legal liability and may create new legal duties where none existed before. Therefore, why risk a multi-million dollar lawsuit and judgement?
To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Thursday, March 8, 2012
Maryland Legislation Would Protect Employee and Job Applicant Social Media Privacy Rights
The state of Maryland continues to lead the way regarding social media and the law. Whether its creating social media election authority regulations or seminal case law on social media evidence authentication I am proud to say that my home state's elected leaders and judiciary have set the benchmark for the rest of the country to follow regarding social media and the law.
During this year's legislative session, Maryland Senate Bill 433 and House Bill 964 were introduced and if passed they will prohibit employers from requiring employees and applicants from disclosing their social media user names and passwords.
According to the synopsis on the Maryland Legislature's website of Senate Bill 433 it states:
Labor and Employment – User Name and Password Privacy Protection and Exclusions
"FOR the purpose of prohibiting an employer from requesting or requiring that an employee or applicant disclose any user name, password, or other means for accessing a personal account or service through certain electronic communications devices; prohibiting an employer from taking, or threatening to take, certain disciplinary actions for an employee’s refusal to disclose certain password and related information; prohibiting an employer from failing or refusing to hire an applicant as a result of the applicant’s refusal to disclose certain password and related information..."
According to the synopsis on the Maryland Legislature's website of House Bill 964 it states:
Labor and Employment – User Name and Password Privacy Protection
"FOR the purpose of prohibiting an employer from requesting or requiring that an employee or applicant disclose any user name, password, or other means for accessing a personal account or service through certain electronic communications devices; prohibiting an employer from taking, or threatening to take, certain disciplinary actions for an employee’s refusal to disclose certain password and related information; prohibiting an employer from failing or refusing to hire an applicant as a result of the applicant’s refusal to disclose certain password and related information..."
The legislation is a win-win for employers, employees, and taxpayers. The bills are designed to protect employee privacy while still enabling the securities and other regulated industries to comply with their strict compliance regulations.
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 employers, employees, and taxpayers.
(Full Disclosure: I am not being paid for my work on this legislation. I believe that privacy rights still matter in the Social Media Age and I want to protect employers, employees, and taxpayers from unforeseen legal issues that may arise if these practices continue. Therefore, I have been in constant contact with Maryland Senator Ronald Young and Maryland Delegate Shawn Tarrant to work with them to create a common sense solution to this problem that protects the interests of employers, employees, and taxpayers.)
To learn how social media intersects with the law you may contact me at http://shearlaw.com/attorney_profile.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
During this year's legislative session, Maryland Senate Bill 433 and House Bill 964 were introduced and if passed they will prohibit employers from requiring employees and applicants from disclosing their social media user names and passwords.
According to the synopsis on the Maryland Legislature's website of Senate Bill 433 it states:
Labor and Employment – User Name and Password Privacy Protection and Exclusions
"FOR the purpose of prohibiting an employer from requesting or requiring that an employee or applicant disclose any user name, password, or other means for accessing a personal account or service through certain electronic communications devices; prohibiting an employer from taking, or threatening to take, certain disciplinary actions for an employee’s refusal to disclose certain password and related information; prohibiting an employer from failing or refusing to hire an applicant as a result of the applicant’s refusal to disclose certain password and related information..."
According to the synopsis on the Maryland Legislature's website of House Bill 964 it states:
Labor and Employment – User Name and Password Privacy Protection
"FOR the purpose of prohibiting an employer from requesting or requiring that an employee or applicant disclose any user name, password, or other means for accessing a personal account or service through certain electronic communications devices; prohibiting an employer from taking, or threatening to take, certain disciplinary actions for an employee’s refusal to disclose certain password and related information; prohibiting an employer from failing or refusing to hire an applicant as a result of the applicant’s refusal to disclose certain password and related information..."
The legislation is a win-win for employers, employees, and taxpayers. The bills are designed to protect employee privacy while still enabling the securities and other regulated industries to comply with their strict compliance regulations.
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 employers, employees, and taxpayers.
(Full Disclosure: I am not being paid for my work on this legislation. I believe that privacy rights still matter in the Social Media Age and I want to protect employers, employees, and taxpayers from unforeseen legal issues that may arise if these practices continue. Therefore, I have been in constant contact with Maryland Senator Ronald Young and Maryland Delegate Shawn Tarrant to work with them to create a common sense solution to this problem that protects the interests of employers, employees, and taxpayers.)
To learn how social media intersects with the law you may contact me at http://shearlaw.com/attorney_profile.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
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