With access comes responsibility and financial liability. A student recently won a $70,000 settlement against a Minnesota school district after she was required to provide access to her personal digital accounts. I initially wrote about this issue on March 10, 2012, and stated, "This behavior is a clear 1st and 4th Amendment and possibly a 5th Amendment violation of the U.S. Constitution." On September 15, 2012, I wrote, "Public schools that require any of their students to register their social media usernames, or to provide access to their password protected digital content via required Facebook Friending or the installation of a third-party software application for any reason are in clear violation of the 1st and 4th Amendment."
This settlement along with the recent NLRB ruling that referenced Northwestern's illegal student-athlete social media policy demonstrates that K-12 schools and post-secondary institutions need to better understand their legal liabilities in the Digital Age. Drafting and enforcing a legal and reasonable social media policy is extremely important since almost every student of a certain age and employee owns or has access to a digital device/account. Students still have a right to privacy despite what some technology companies may claim.
For years, I have been publicly discussing the legal liability issues schools will encounter if they require access to their student's personal digital accounts. Schools that refuse to understand and properly address these issues will (not may) have tremendous legal liability and financial obligations. If a school wants access to their students' personal digital accounts they may need to pay $70,000 per student. There are other options available and my hope is that schools become better educated about them.
Copyright 2014 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Thursday, March 27, 2014
Wednesday, March 26, 2014
NLRB Refers To Northwestern's Illegal Social Media Policy in Ruling Student Athletes May Unionize
In a ground breaking ruling earlier today, the regional director of the National Labor Relations Board ruled today that Northwestern University scholarship football players are employees of the school and are eligible to form the nation's first college athletes' union. According to ESPN's Lester Munson, the ruling is very well-reasoned.
As part of the rationale as to why Northwestern's scholarship football players are to be considered employees rather than student-athletes the ruling mentions Northwestern's illegal student-athlete social networking policy. On page 5 it states, "[t]he players must also abide by a social media policy, which restricts what they can post on the Internet, including Twitter, Facebook, and Instagram. In fact, the players are prohibited from denying a coach's "friend" request and the former's posting are monitored."
Northwestern's student-athlete social networking policy is in clear violation of Illinois Public Act 098-0129. This act states, "It is unlawful for a post-secondary school to request or require a student or his or her parent or guardian to provide a password or other related account information in order to gain access to the student's account or profile on a social networking website or to demand access in any manner to a student's account or profile on a social networking website."
On August 14, 2013, I wrote that Northwestern will be required to change its student-athlete social media policy before 1/1/2014 because of Illinois' new social media privacy law. Unfortunately, this did not occur and its illegal policy was utilized against them in analyzing that a student-athlete is an employee and not a student.
While this ruling may eventually be overturned, it should serve as a wake up call to NCAA schools that highly regulate their student-athletes' digital usage. Athletic departments that enforce strict social media policies and/or utilize social media monitoring companies may soon have more legal and financial issues to confront than anticipated. Continuing to deploy social media monitoring companies to watch student-athletes online may encourage other administrative and/or judicial bodies to conclude that student-athletes are not students but employees.
NCAA athletic departments should be careful for what they wish for. With access comes responsibility. Strictly regulating student-athletes' personal digital lives will create tremendous legal and financial problems.
Copyright 2014 by the Law Office of Bradley S. Shear, LLC All rights reserved.
As part of the rationale as to why Northwestern's scholarship football players are to be considered employees rather than student-athletes the ruling mentions Northwestern's illegal student-athlete social networking policy. On page 5 it states, "[t]he players must also abide by a social media policy, which restricts what they can post on the Internet, including Twitter, Facebook, and Instagram. In fact, the players are prohibited from denying a coach's "friend" request and the former's posting are monitored."
Northwestern's student-athlete social networking policy is in clear violation of Illinois Public Act 098-0129. This act states, "It is unlawful for a post-secondary school to request or require a student or his or her parent or guardian to provide a password or other related account information in order to gain access to the student's account or profile on a social networking website or to demand access in any manner to a student's account or profile on a social networking website."
On August 14, 2013, I wrote that Northwestern will be required to change its student-athlete social media policy before 1/1/2014 because of Illinois' new social media privacy law. Unfortunately, this did not occur and its illegal policy was utilized against them in analyzing that a student-athlete is an employee and not a student.
While this ruling may eventually be overturned, it should serve as a wake up call to NCAA schools that highly regulate their student-athletes' digital usage. Athletic departments that enforce strict social media policies and/or utilize social media monitoring companies may soon have more legal and financial issues to confront than anticipated. Continuing to deploy social media monitoring companies to watch student-athletes online may encourage other administrative and/or judicial bodies to conclude that student-athletes are not students but employees.
NCAA athletic departments should be careful for what they wish for. With access comes responsibility. Strictly regulating student-athletes' personal digital lives will create tremendous legal and financial problems.
Copyright 2014 by the Law Office of Bradley S. Shear, LLC All rights reserved.
Saturday, March 22, 2014
NFL Star Roddy White Makes Season Ticket Offer on Twitter If Duke Loses and May Have To Pay Up
Are social media offers legally binding? Yes. R&B artist Ryan Leslie lost a $1 million dollar lawsuit in 2012 over his refusal to honor his YouTube offer. Earlier this week, the Atlanta Falcons' Roddy White Tweeted: @DHoyt77 if mercer beat duke I will give you season tickets 50 yard line first row. Duke lost the game and subsequently White Tweeted: I lost a bet and I will give him tickets to the bears game since he is a bears fan done with this bet
There was an offer by White and an acceptance by @DHoyt77. If White refuses to honor his initial offer and @DHoyt77 decides to sue White for the offer of season tickets I believe @DHoyt77 has a valid claim. The Leslie case may provide a strong precedent for @DHoyt77's position that may be utilized to demonstrate that a social media offer and acceptance is legally binding.
While White's offer may sound reminiscent of the Aaron Rodgers Tweet last year that stated, " @toddsutton ya I'd put my salary next year on it," it is not. Aaron Rodgers didn't state to another Twitter user "I will give you my entire year's salary". There was no clear offer and acceptance in the Rodgers matter. Here, there appears to be a straight forward offer and acceptance. Therefore, I believe White owes for the entire season and @DHoyt77 has a strong claim that is legally enforceable.
The bottom line is that be careful what you Tweet because it may be used against you in the future.
Copyright 2014 by the Law Office of Bradley S. Shear, LLC All rights reserved.
There was an offer by White and an acceptance by @DHoyt77. If White refuses to honor his initial offer and @DHoyt77 decides to sue White for the offer of season tickets I believe @DHoyt77 has a valid claim. The Leslie case may provide a strong precedent for @DHoyt77's position that may be utilized to demonstrate that a social media offer and acceptance is legally binding.
While White's offer may sound reminiscent of the Aaron Rodgers Tweet last year that stated, " @toddsutton ya I'd put my salary next year on it," it is not. Aaron Rodgers didn't state to another Twitter user "I will give you my entire year's salary". There was no clear offer and acceptance in the Rodgers matter. Here, there appears to be a straight forward offer and acceptance. Therefore, I believe White owes for the entire season and @DHoyt77 has a strong claim that is legally enforceable.
The bottom line is that be careful what you Tweet because it may be used against you in the future.
Copyright 2014 by the Law Office of Bradley S. Shear, LLC All rights reserved.
Thursday, March 13, 2014
Roseanne Barr Sued Over Trayvon Martin Case Tweets By George Zimmerman's Parents
I advise my clients to Tweet and utilize other digital platforms only after they have thought about the potential legal consequences that may occur if they share their personal thoughts online. Too many self-described social media consultants preach how great it is to share as much about yourself on electronic platforms as possible to make your personal story "authentic". This feel good "branding" advice that many social media consultants tout is usually worthless and may create tremendous legal liability issues.
Before social media, to have your voice heard was not easy. In the past, a publicist may have been needed to reach out to the media. Social Media has changed the game and increased the potential for major legal liability for those who post online. For example, during the trial of George Zimmerman for the alleged murder of Trayvon Martin, Spike Lee Tweeted out an incorrect address of a couple whom he believed was George Zimmerman's parents. To avoid a potential trial, Spike Lee settled with the couple whose address he incorrectly posted on Twitter.
Spike Lee was not the only celebrity who Tweeted about the George Zimmerman case who may need to pay civil damages because of his Tweets. Actress Roseanne Barr was sued by George Zimmerman's parents for Tweeting out their actual address which they claim required them to live in hiding. According to CNN, the Zimmermans accuse Barr of "intentional infliction of emotional distress" and "invasion of privacy" with the message to her 110,000 Twitter followers on March 29, 2012."
The bottom line is be careful about what you Tweet. Just because you have the ability to comment about a matter of public concern doesn't mean you should say whatever is on your mind. While you may have the right to say whatever you want in our country, almost anyone has the right to sue you for almost whatever you say. Whether the lawsuit will be successful is an entirely different matter.
Copyright 2014 by the Law Office of Bradley S. Shear, LLC All rights reserved.
Before social media, to have your voice heard was not easy. In the past, a publicist may have been needed to reach out to the media. Social Media has changed the game and increased the potential for major legal liability for those who post online. For example, during the trial of George Zimmerman for the alleged murder of Trayvon Martin, Spike Lee Tweeted out an incorrect address of a couple whom he believed was George Zimmerman's parents. To avoid a potential trial, Spike Lee settled with the couple whose address he incorrectly posted on Twitter.
Spike Lee was not the only celebrity who Tweeted about the George Zimmerman case who may need to pay civil damages because of his Tweets. Actress Roseanne Barr was sued by George Zimmerman's parents for Tweeting out their actual address which they claim required them to live in hiding. According to CNN, the Zimmermans accuse Barr of "intentional infliction of emotional distress" and "invasion of privacy" with the message to her 110,000 Twitter followers on March 29, 2012."
The bottom line is be careful about what you Tweet. Just because you have the ability to comment about a matter of public concern doesn't mean you should say whatever is on your mind. While you may have the right to say whatever you want in our country, almost anyone has the right to sue you for almost whatever you say. Whether the lawsuit will be successful is an entirely different matter.
Copyright 2014 by the Law Office of Bradley S. Shear, LLC All rights reserved.
Tuesday, March 11, 2014
Tweets, School Bathrooms, The First Amendment, and The Right To Privacy
What if a student takes a photo of behavior occurring in the common area of a school bathroom during school hours that appears to violate school policy and then Tweets out the image with commentary? Should the photographer who captured and Tweeted out the image be disciplined but those whose behavior allegedly violated school policy not be punished? This is a question that a public high school in Maryland is answering.
Recently, a student Tweeted out a selfie of herself with two other students in the background allegedly engaging in sexual contact. As of this writing, the photo has been re-tweeted over 14,000 times. After school administrators became informed about the situation, the Tweeter was suspended for ten days. The students who appeared in the photo (their faces are not viewable) allegedly engaging in some type of personal interaction that may or may not be of a sexual nature were not disciplined.
I am very protective of free speech rights; especially for students. I strongly believe in the Tinker v. Des Moines decision which ruled that students do not leave their constitutional rights at the school house gate. However, I believe in Griswold v. Connecticut's ruling that we all have a right to privacy. Mobile devices and wearable technology will test the right to privacy versus the first amendment in the Digital Age. This situation demonstrates that their are no easy answers regarding where our first amendment rights end and our right to privacy begins.
Copyright 2014 by the Law Office of Bradley S. Shear, LLC All rights reserved.
Recently, a student Tweeted out a selfie of herself with two other students in the background allegedly engaging in sexual contact. As of this writing, the photo has been re-tweeted over 14,000 times. After school administrators became informed about the situation, the Tweeter was suspended for ten days. The students who appeared in the photo (their faces are not viewable) allegedly engaging in some type of personal interaction that may or may not be of a sexual nature were not disciplined.
I am very protective of free speech rights; especially for students. I strongly believe in the Tinker v. Des Moines decision which ruled that students do not leave their constitutional rights at the school house gate. However, I believe in Griswold v. Connecticut's ruling that we all have a right to privacy. Mobile devices and wearable technology will test the right to privacy versus the first amendment in the Digital Age. This situation demonstrates that their are no easy answers regarding where our first amendment rights end and our right to privacy begins.
Copyright 2014 by the Law Office of Bradley S. Shear, LLC All rights reserved.
Bill Cosby, Gilbert Gottfried, Big Data, and the Right to Privacy
One of my favorite television programs growing up in the 1980's was The Cosby Show. The show was about an upper middle-class African-American family living in Brooklyn, New York. I enjoyed the show because it was funny and the issues it covered were very timely.
Recently, I watched one of my favorite episodes. This particular episode's main theme was negotiating to buy a new car since the old family truckster (i.e. think the Griswald's car in National Lampoon's Vacation) was on its last legs. Bill Cosby's character, Dr. Heathcliff Huxtable does not want the car dealer to know that he is a doctor because he fears he will lose any negotiating power (i.e. he wants to keep his potential financial status anonymous because he believes the dealership will be more flexible with a less financially successful customer; think "price discrimination" based upon ability to pay) if the dealer can size him up financially. He visits the car dealership with his son in an average looking shirt, pants, etc... and avoids telling the salesman his profession.
Dr. Huxtable is downplaying his financial position while the car salesman talks about how expensive it is to raise his children and how one of his kids now needs braces. The bottom line is that the car negotiation is moving along when all of a sudden Gilbert Gottfried shows up. Gilbert Gottfried calls Bill Cosby's character "Dr. Huxtable" (the salesman didn't know he was a doctor) and tells the salesman that Dr. Huxtable's wife was recently made a partner in her law firm and that they have plenty of money. The bottom line is that Gilbert Gottfried's information appeared to alter Dr. Huxtable's ability to negotiate the best possible deal.
Why does this matter? Think of Gilbert Gottfried as a data broker, a digital online advertising network, or an app that sells (i.e. shares, exchanges, etc...) your personal information to others. This information may then be combined so a personal dossier is created that includes both your online and offline activities. According to 60 Minutes, this information may then be sold to governments to spy on you or to entities that may prey on those who are vulnerable to sales pitches.
The more information a seller knows about its buyers the greater the risk that price discrimination may occur. Should a person's race, creed, religion, personal opinions, wants, disabilities, financial position, health status, etc... be available to sellers? Should all Americans be on the same footing when shopping or negotiating for goods and/or services? For example, should a school provider of digital services be able to sell to a data broker or insurance company the lunch purchasing information of students so a corporate entity may then utilize this information for commercial gain?
I believe our country needs to create stronger data protection laws and require data collection companies to become more transparent about their activities. I don't want my children to grow up in a world where everything they do is collected and inserted into their personal digital file and utilized to discriminate them. Shouldn't future generations have the same privacy protections we had while growing up?
Copyright 2014 by the Law Office of Bradley S. Shear, LLC All rights reserved.
Recently, I watched one of my favorite episodes. This particular episode's main theme was negotiating to buy a new car since the old family truckster (i.e. think the Griswald's car in National Lampoon's Vacation) was on its last legs. Bill Cosby's character, Dr. Heathcliff Huxtable does not want the car dealer to know that he is a doctor because he fears he will lose any negotiating power (i.e. he wants to keep his potential financial status anonymous because he believes the dealership will be more flexible with a less financially successful customer; think "price discrimination" based upon ability to pay) if the dealer can size him up financially. He visits the car dealership with his son in an average looking shirt, pants, etc... and avoids telling the salesman his profession.
Dr. Huxtable is downplaying his financial position while the car salesman talks about how expensive it is to raise his children and how one of his kids now needs braces. The bottom line is that the car negotiation is moving along when all of a sudden Gilbert Gottfried shows up. Gilbert Gottfried calls Bill Cosby's character "Dr. Huxtable" (the salesman didn't know he was a doctor) and tells the salesman that Dr. Huxtable's wife was recently made a partner in her law firm and that they have plenty of money. The bottom line is that Gilbert Gottfried's information appeared to alter Dr. Huxtable's ability to negotiate the best possible deal.
Why does this matter? Think of Gilbert Gottfried as a data broker, a digital online advertising network, or an app that sells (i.e. shares, exchanges, etc...) your personal information to others. This information may then be combined so a personal dossier is created that includes both your online and offline activities. According to 60 Minutes, this information may then be sold to governments to spy on you or to entities that may prey on those who are vulnerable to sales pitches.
The more information a seller knows about its buyers the greater the risk that price discrimination may occur. Should a person's race, creed, religion, personal opinions, wants, disabilities, financial position, health status, etc... be available to sellers? Should all Americans be on the same footing when shopping or negotiating for goods and/or services? For example, should a school provider of digital services be able to sell to a data broker or insurance company the lunch purchasing information of students so a corporate entity may then utilize this information for commercial gain?
I believe our country needs to create stronger data protection laws and require data collection companies to become more transparent about their activities. I don't want my children to grow up in a world where everything they do is collected and inserted into their personal digital file and utilized to discriminate them. Shouldn't future generations have the same privacy protections we had while growing up?
Copyright 2014 by the Law Office of Bradley S. Shear, LLC All rights reserved.
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