Minnesota School District To Pay $70,000 For Accessing Student's Facebook Account

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.

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. 

O'Bannon Lawsuit against NCAA Adds Current Student-Athletes

The image and likeness rights to current and former student-athletes are valuable assets.  For years, the basic deal has been that a school offers a prospective student a one year renewable (by the school) scholarship to students and in return a student becomes a student-athlete, receives an education, and hopefully a valuable degree that may be utilized to obtain gainful employment. As part of the deal, a school and/or conference, and/or the NCAA may monetize the name and likeness of their student-athletes in perpetuity. 

Is this a fair deal?  This is a question that is currently being litigated by what is known as the O'Bannon lawsuit.  According to a press release by the law firm representing the O'Bannon class representatives, there is "a conspiracy by the NCAA and its business partners, such as videogame manufacturer EA and licensing agent CLC, to license and sell the names, images, and likeness of current and former student-athletes without compensation to those student-athletes, under the guise of amateurism."

The former student-athlete class representatives Ed O’Bannon, Oscar Robertson, William Russell, Harry Flournoy, Alex Gilbert, Sam Jacobson, Thad Jaracz, David Lattin, Patrick Maynor, Tyrone Prothro, Damien Rhodes, Eric Riley, Bob Tallent, Danny Wimprine, Ray Ellis, and Tate George have now been joined by current student-athletes, Jake Fischer, Jake Smith,Darius Robinson, Moses Alipate, Chase Garnham, and Victor Keise.

If the court certifies the lawsuit as a class action, the case has the potential to change the financial structure of college athletics.  If the lawsuit moves forward, the court may have to determine if the current financial structure of college sports is equitable to all parties.  If this occurs, it is possible that the court may determine that a redistribution of college athletic revenues may be in order.  

Copyright 2013 by the Law Office of Bradley S. Shear, LLC All rights reserved.    

Right To Privacy Will Be Protected By The Social Networking Online Protection Act

The Social Networking Online Protection Act (SNOPA) was recently reintroduced by Congressman Eliot Engel of New York. SNOPA is the first bipartisan federal legislation designed to protect the digital privacy of employees, job applicants, students, and student applicants in the Social Media Age. The legislation may also provide a legal liability shield to businesses and academic institutions that may make it difficult for litigants to claim that these entities have a legal duty to monitor the personal digital accounts of their employees and/or students.

The right to digital privacy needs to be statutorily strengthened in the United States. Last year, the Supreme Court in U.S. v. Jones ruled that the government needs a warrant in order to place a GPS device onto a suspect's car. The Jones' decision demonstrates that the judiciary recognizes that people still have an expectation of privacy in the Social Media Age.

At this point, there have been only a handful of publicized examples where employees have alleged that their employer and/or a company with whom they interviewed with requested access to their personal digital accounts. This may be an underreported problem because according to a 2012 Harris Interactive Survey, 37% of hiring managers utilize social networking sites to screen candidates.

Without the protections that SNOPA provides how long will it be before it becomes commonplace for employers to require job applicants and/or employees provide access to personal password protected digital accounts as part of the employment process? In 2008, Congress enacted the Genetic Information Non-Discrimination Act (GINA) to bar employers from using genetic information when making employment decisions. GINA was not enacted because of a high profile incident where an employer required a candidate to submit his genetic information as part of the application process; it was enacted as a pre-emptive measure. In contrast, there are already multiple verifiable situations where employers are requiring job applicants provide their personal digital credentials as part of the application process.

While there have only been a handful of publicized incidents where employers are requiring access to their candidates' personal password protected digital content, thousands of students across the country are being required to turn over their digital usernames and/or passwords and/or Facebook Friend a school administrator and/or install cyberstalking software in order to attend a public school, keep a scholarship or participate in extra-curricular activities.

There have been multiple incidents where public school students have been forced without reasonable suspicion to turn over their personal Facebook and/or email usernames and passwords to school administrators. Universities across the country are requiring student-athletes to register their social media user names and/or Facebook Friend school officials and/or install cyberstalking software to track and archive their personal digital activity.

With access comes responsibility. Last year, a former Library of Congress employee alleged in a lawsuit that because his former supervisor viewed one of the groups he liked on Facebook he was discriminated against. The family of Yardley Love, a University of Virginia (UVA) student-athlete who was murdered on UVA's campus by her former boyfriend George Huguely (also a UVA student-athlete), is suing UVA and school employees for $30 million dollars for failing to properly protect their daughter.

Love's family alleges that UVA and its employees knew or should have known Huguely was a danger to Love because Huguely was not properly disciplined for past known inappropriate conduct because he was a star student-athlete. While it is too soon to speculate what type of evidence Love's family will introduce during legal proceedings, if UVA and/or its employees had access to Huguely's or Love's personal digital accounts and missed and/or intentionally ignored content that may have indicated a potential problem this may create tremendous legal liability for UVA and/or its employees.

If SNOPA is enacted students will not have to worry about being required to provide access to their personal digital accounts in order to attend the school of their dreams or keep their scholarships. In addition, academic institutions that do not violate the law may have a strong legal liability shield against litigants who claim schools have a legal duty to become the social media police.

Protecting personal digital privacy will help grow the economy and foment new technological breakthroughs. If people believe their personal password protected digital thoughts, ideas, and creations are statutorily protected they will increase their usage of Dropbox, Microsoft SkyDrive, Google Plus, Facebook, etc... It is vital for our country's competitive future to implement public policy that encourages increased digital platform participation in our increasingly interconnected world.

SNOPA would  encourage widespread consumer adoption of cloud based platforms because users will not have to worry that their employer or school may require they provide access to their personal password protected digital accounts absent a judicial order. SNOPA is bipartisan win-win legislation that protects employers, employees, job applicants, schools, students, and student-applicants.

To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.

Copyright 2013 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

(Full Disclosure: I am working with Congressman Engel's office on this bill.) 

Social Media Monitoring NCAA Student-Athletes May Create Legal Liability in Excess of $100 Million Dollars

In the past 6 months, California, Michigan, Delaware, and New Jersey have enacted laws banning school athletic departments from requesting or requiring their student-athletes verify their social media/digital media usernames/passwords and/or install cyberstalking software onto their personal accounts or devices.  Many other states along with Congress have introduced legislation to ban these practices to protect schools from legal liability and to protect the personal privacy of students.   

Unfortunately, some companies/"social media experts" are approaching NCAA schools and intentionally misleading athletic departments about their experience, their understanding of NCAA compliance, and their knowledge of state and federal law.  Some of these companies may claim that their "social media monitoring" services "respect privacy", or "promote compliance", or they "never ask for passwords" or that their services"facilitate education".  These claims are misleading and may create tremendous legal liability for NCAA athletic programs that engage any of these companies.

The legal liability of engaging a social media monitoring company to digitally track a program's student-athletes or employees may be tens of millions of dollars. Anyone who disagrees with this analysis needs to review the facts about the Penn State Jerry Sandusky scandal.  Emails from 10 plus years ago destroyed the careers of several well respected members of the Penn State administration/faculty and may cost the school more than $100 million dollars in fines/legal fees/judgements/settlements, etc.. 

Digital evidence (emails) was key in the Freeh Report which the NCAA appears to have relied on to levy a $60 million dollar fine against Penn State.  The total cost of this terrible scandal to Penn State may reach $150-$200 million dollars.  Absent the digital evidence, the Freeh Report may have reached a different conclusion, the NCAA may not have had the evidence to support a fine and other sanctions, and plaintiffs may have a hard time proving Penn State knew about Mr. Sandusky's behavior.  

Do schools and athletic department employees want to monitor and archive potential evidence that may be discoverable and utilized against them in lawsuits?  The bottom line is that NCAA athletic departments should not engage services that may harm their interests and put them in a position that may create tens or hundreds of millions of dollars in legal liability.  

To learn more about these issues you may contact me at http://shearlaw.com.

Copyright 2013 by the Law Office of Bradley S. Shear, LLC. All rights reserved. 

Are UDiligence and Varsity Monitor advising NCAA schools to violate the Stored Communications Act?

Over the past couple of years, companies with names like UDiligence and Varsity Monitor have been created to monitor the digital activity of student-athletes. At first glance it may seem like a good idea to require students to provide access to password protected social media content. However, once you understand what this means from a legal and financial perspective you may realize that this is a Pandora's Box that should not be opened.

UDiligence and Varsity Monitor appear to prey on the fears of college athletic departments even though the NCAA recently ruled that schools do not have a duty to monitor password protected social media content. Instead of helping NCAA athletic departments, these services may be exacerbating the situation because it appears they may be encouraging colleges to create new legal duties and violate the constitutional rights of their students along with multiple federal and state laws.

Within the past couple of weeks, both UDiligence and Varsity Monitor have taken down their client lists from their websites. Have the schools pressured them to do so? Or, did both of these companies take down their client lists because the media has started to ask in-depth questions about their services?

Pietrylo v. Hillstone Restaurant Group, 2009 WL 3128420 (D.N.J. 2009), is a case that appears analogous to the situation where schools are "requesting" that their student-athletes provide access to their password protected digital/social media accounts. In Pietrylo, an employee "did not feel free" to deny her boss access to a password protected MySpace account. The jury found that the employer violated the Stored Communications Act and the case was upheld on appeal. Therefore, since students "may not feel free" to deny their athletic departments and/or third parties access to their password protected social media accounts these services may be advising schools to violate the Stored Communications Act.

Since requesting employees to provide access to their password protected social media accounts has been found to violate the Stored Communications Act, it may also violate the Stored Communications Act for NCAA schools to "request" access to their students' password protected social media accounts. Requiring public school students to download applications and/or Facebook Friend university employees or agents may also violate the 1st and 4th Amendments along with the Electronic Communications Privacy Act, and multiple other federal and state laws.

The bottom line is that schools that engage UDiligence or Varsity Monitor may be paying $10,000 plus dollars per year for a service that may be creating more problems than it solves.

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.

SNOPA (HR 5050) May Protect Insurance Companies From Schools and Businesses That Demand Access To Personal Password Protected Social Media Accounts

I have written how the Social Networking Online Protection Act (HR 5050) may benefit employees, job applicants, employers, students, student applicants, and schools. Now, I am going to explain how HR 5050 may benefit insurance companies.

Does the insurance industry realize that multiple schools are creating a massive database of their students' password protected social media content and activities? With access to all of this data these schools may become responsible for everything their students do online and everything that is referenced online and/or inferred online that may occur in the real world.

The Universities of North Carolina, Texas, Nebraska, and Oklahoma may not only be violating the Stored Communications Act with their student-athlete social media policies but also may be creating tremendous insurability problems for their academic institutions.

Each of the above mentioned schools have engaged a company called Varsity Monitor. In order for students to keep their scholarships and play intercollegiate sports at these public institutions, they must Facebook Friend Varsity Monitor and provide unfettered access to their password protected social media/digital content. Varsity Monitor downloads the students' social media content and creates detailed reports about all of the students' digital activities. Requiring a student to provide access to their password protected social media/digital content may violate FERPA and/or other federal and/or state laws

Varsity Monitor along with above schools are compiling vast amounts of personal data on thousands of students. What happens when there is a data breach? In Varsity Monitor's agreements and policies it clearly states that by using their service they are indemnified against any legal issues that may arise. Therefore, when a data breach occurs who will be left paying for it? The schools' insurance companies.

According to the latest Ponemon Data Breach Study, the average cost of a data breach is $194 per record and the overall average organizational cost is $5.5 million dollars. These figures appear to be focused on what I would call traditional data breach issues (compromised social security numbers, dates of births, addresses, etc...) and not personal social media data breach issues (which may include traditional issues plus a list of friends, professional contacts, personal photographs, confidential interactions, potential blackmail information, etc...). Furthermore, according to Ponemon the biggest threat to data breach are those who have access to the data. Therefore, when a student-athlete becomes famous and his social media content contains embarrassing information will Varsity Monitor and/or school employees who have access to the data leak the password protected personal content for personal gain?

Are schools prepared for the increase in legal discovery requests that will accompany all of the data they have accumulated on their students? Are schools telling their insurance companies that they are accumulating all of this unneeded personal data on their students? Do the schools that engage Varsity Monitor or similar service providers such as UDiligence, or Centrix Social know that a data breach at Ohio State a couple years ago may have cost the University $4 million dollars to resolve. These costs included: investigative consulting, notification of the breach, and a calling center to answer questions or concerns.

Ohio State's insurance company may have covered the entire cost of this incident. However, will the insurance industry be willing to cover an incident when a school and/or Varsity Monitor mishandles personal password protected social media content and/or when a school is sued for negligent social media monitoring? This type of lawsuit may contain some of the same arguments as the recent $30 million dollar lawsuit against UVA by the family of Yardley Love. However, because of digital evidence a jury in a negligent social media monitoring lawsuit may award $100 million dollars plus to a plaintiff. If you don't think this could happen you may want to ask Dharun Rhavi's lawyer about the power of social media evidence.

If the insurance industry wants to be protected from having to pay out claims against schools and/or businesses who are requiring their students and/or employees to provide access to their password protected digital content they will support the Social Networking Online Protection Act (HR 5050).

(Full Disclosure: I am working pro bono with Rep. Engel's office on the Social Networking Online Protection Act .)

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.

NCAA Schools That Require Their Students To Facebook Friend Them May Be Violating the Stored Communications Act

Any school or university that requires its students to Facebook Friend a coach, a school administrator, or a third party in order for their students to keep their scholarships, participate in intercollegiate athletics, etc... may be violating the Stored Communications Act (SCA).

Under the Stored Communications Act, forced Facebook Friending may be against the law. Since the SCA was enacted in 1986, before the existence of modern social media, the Social Networking Online Protection Act (SNOPA) is needed to catch up with modern technology. Any school or university employee who believes that it is legally prudent to require their students to provide them access to their personal password protected digital content without a court order may want to learn more about the lawsuit against the University of Virginia (UVA) by the family of Yardley Love.

Yardley Love was a student-athlete at UVA who was murdered by fellow UVA student-athlete George Huguely. According to ABC News, Yardley Love's family is suing the coaches of the men's lacrosse team along with the athletic director because they allegedly knew or should have known that George Huguely was a danger to others. If UVA was social media monitoring George Huguely and missed or misinterpreted a Tweet, or a Facebook post, or other online content that may have indicated he may be a danger to others this $30 million dollar lawsuit against UVA may have been a $100 million dollar plus lawsuit.

With access comes responsibility. Schools and/or universities that require their students to Facebook Friend coaches, school employees, third parties, etc... and/or require students to install social media monitoring software onto their personal electronic devices may become liable for their students' online content and conduct along with offline conduct that was referred to and/or inferred by a Tweet, Facebook post, blog comment, etc.... Does a school or university want to be sued for negligent social media monitoring or failure to social media monitor?

If a school or university legal department wants to protect itself against these types of social media lawsuits they will enthusiastically support the Social Networking Online Protection Act (HR 5050) because it may provide them a legal liability shield against these claims. If a school or university wants to become the social media police and become liable for their students' online behavior and offline behavior that may have been referred to and/or inferred online that is their prerogative. If so, they may want to obtain cyber liability insurance that contains at least $100 million dollars in per incident coverage to protect against social media lawsuits.

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.

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.