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.

Spying on NCAA Student-Athletes By Utilizing Social Media Monitoring Firms May Be Unconstitutional

As we begin the NCAA college football season, student-athlete social media usage is being hotly debated and dissected by the media. Some are advocating social media bans while others are recommending some of our country's future leaders to expose to third-party companies and/or school compliance departments their non-public private online interactions with others. After reading multiple articles from numerous major news outlets, I realize that some members of the media do not understand the legal issues involved with social media.

Monitoring the public social media posts of student-athletes is legal. In fact, 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. Checking up on a student in the real world encompasses face to face meetings, phone calls, class and study hall attendance record review, grade point average eligibility requirements, etc...

A couple months ago, Crain's Business Insurance discussed the legal liabilities that colleges and universities may encounter if they implement social media monitoring programs. None of the lawyers or risk professionals quoted in the Crain's Business Insurance article advocated that schools implement social media monitoring programs. In the same article an NCAA spokesperson stated, "the NCAA does not require its member schools to monitor the social media accounts of student athletes."

On June 22, 2011, and June 28, 2011 I touched upon the legality of utilizing social media monitoring services on student-athletes. The 1st, 4th, and 14th amendments of the U.S. Constitution may be violated along with numerous state and federal laws, and there may be discrimination claims when a public school's compliance department requires a student-athlete to participate in a social media monitoring program.

To better understand the issues involved with social media monitoring of private social media content it is essential to explain some of the details. For example, one social media monitoring company requires student-athletes to install social media monitoring and archiving software onto their personal electronic devices. Another company requires that student-athletes Facebook Friend them and/or allow them to follow a student's protected Twitter account. These companies then capture the student's social media activity and send it to the schools who hire them.

In addition to monitoring a student's private social media content these companies and/or a school's compliance department may also archive a student's private social media content for 4-7+ years. Therefore, instead of one entry point where data may be exposed there are at least 3 possible data leakage opportunities where a student's (and his/her online friends) private posts, photographs, messages, etc... may be disseminated to those who are not the intended recipients.

One of the social media monitoring firms boasts that its software has found numerous photographs of students in uncompromising positions. Of course it would find these photographs on students' private social media pages because students may have a reasonable expectation of privacy on their private social media accounts. This social media monitoring company also monetizes students' copyrighted photos by uploading them onto its corporate website as a selling point to prospective clients as to what material its service has found.

I highly doubt any student would under their own free will and accord install an invasive software program onto their personal computer that would enable a third-party to view, capture, archive, and monetize their or their friends' personal photographs and social media content. The social media monitoring companies that require students to install monitoring programs onto their personal electronic devices protect themselves legally with the terms of service in their user agreements that students must accept before installing their software and/or through the contracts it signs with athletic compliance departments.

Another method used to gain access to student-athletes' private social media posts requires student-athletes to Facebook Friend a third-party social media monitoring company and/or its school's compliance department. If a public college or university requires its student-athletes to Facebook Friend a third-party and/or its compliance department it may be deemed an unreasonable search and seizure under the 4th amendment. Student-Athletes may have a reasonable expectation of privacy if their social media page is set to private and not available for all to access.

The activities described above are an outrageous disregard for the U.S. Constitution and numerous federal and state laws. Public schools that require their students-athletes to install social media monitoring software onto their personal computers and/or require student-athletes to provide access to their non-public social media pages to their compliance departments directly or via third-parties may already be facing tremendous legal liability. The companies who are providing social media monitoring services may also have significant legal liability challenges ahead.

To learn more about these issues you may contact me at www.shearlaw.com.

Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Players Associations, Sports Leagues, the NCAA, and the Olympics Must Say No To Social Media Monitoring of Athletes

Professional and amateur sports must say no to forcing social media monitoring software (e.g. malware) on their professional, amateur, and student athletes. Criminals in prison and those under house arrest need to be monitored and tracked; however, young men and women should be provided social media life skills.

Institutions that deploy social media monitoring services are wasting their precious resources since crowdsourcing already performs this service for free. Monitoring athletes' social media usage is a reactive approach that is doomed to failure. A recent CBS Sports article touted social media monitoring of professional and amateur athletes as something that both labor and management could agree on. The article further states that within 2-3 minutes after an alleged inappropriate post a cautionary e-mail is sent to both the monitor (a school or franchise) and an athlete. What the article does not discuss is that once a Tweet or a Facebook post has been made it can never be deleted from the Internet. Within seconds, a Tweet can be re-tweeted and a Facebook post can be shared hundreds of times.

Therefore, how can social media monitoring help? It can't. Remember Congressman Weiner's accidental tweet that was meant to be a direct message. Within a few minutes after Mr. Weiner Tweeted a message to a college student that included a link to a photograph of himself in his underwear he tried to delete it. However, once content has been uploaded online it is too late. Mr. Weiner learned this the hard way (no pun intended). Thousands of people were following Mr. Weiner on Twitter so no social media monitoring service could have saved Mr. Weiner from his own stupidity.

Social Media monitoring is like using a condom after sex. It is too late to offer any protection. Once an alleged inappropriate message has been sent out via social media a monitoring service is worthless because it can't protect an athlete or an institution from the consequences of an alleged inappropriate post. Social Media monitoring services are unable to offer protection because they are reactive and not proactive. In other words, these services are fool's gold.

There are multiple major legal issues involved with social media monitoring of athletes. These may include First Amendment, employment, and tort liability issues. Those organizations that deploy social media monitoring of their athletes are not only wasting their time and money on a worthless reactive service, but they also are creating major legal liability issues. Furthermore, it is very easy to change a social media account name and there is the problem of fake accounts and hacked accounts.

The bottom line is that professional and amateur sports organizations along with colleges and universities should not deploy social media monitoring of their athletes unless they are interested in wasting their money and incurring unanticipated legal liabilities.

To learn how to avoid social media legal liability in professional and amateur sports you may contact me at www.shearlaw.com.

Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.