New Mexico recently joined Delaware, California, New Jersey, Michigan, Arkansas, and Utah in protecting their schools, school employees, students, and taxpayers from the potential costs and legal liability issues associated with social media monitoring students. Under New Mexico SB 422, it is unlawful "to demand access in any manner to a student's, applicant's or potential applicant's account or profile on a social networking web site."
The enactment of SB 422 will greatly benefit schools, school employees, students, and taxpayers because collectively post-secondary schools in New Mexico may save millions of dollars in potential compliance costs and tens or hundreds of millions of dollars in potential costs associated with social media related lawsuits. SB 422 along with similar laws around the country appear to negatively affect the following companies that offer social media monitoring services: UDiligence, Varsity Monitor, Fieldhouse Media, and Jump Forward.
It appears that the only way for the above mentioned social media monitoring services to properly function is if a student either downloads an application onto his personal account(s), provides a username(s) and/or password(s) to his personal account(s), or if a student authenticates his social media account(s). These services may claim that all they need to properly work is a student's name or alias to search for a public social media account. However, performing an Internet search and guessing that an account belongs to a particular student just because it is on the Internet may put you in the same position as one of the people portrayed in this hilarious State Farm Commercial. According to CNN, as of last August, Facebook may have at least 83 million fake accounts and according to PRWeek, Twitter may have as many as 20 million fake accounts.
Any company that approaches schools to sell social media
monitoring services to track students' personal digital accounts is selling a legal liability time bomb. If a school is monitoring the personal social media content of their students and misses an indication that there may be a crime committed it may cost the school more than $100 million dollars. For proof, just review the Penn State emails regarding the Jerry Sandusky matter. Does a school want to be on the hook for tens or hundreds of millions of dollars in legal liability because it was utilizing a social media monitoring service to track their students personal digital accounts?
To learn more about these issues you may contact me at www.shearlaw.com.
Copyright 2013 by the Law Office of Bradley S. Shear, LLC All rights reserved.
Showing posts with label UDiligence. Show all posts
Showing posts with label UDiligence. Show all posts
Thursday, May 9, 2013
Tuesday, April 9, 2013
Utah Bans Student-Athlete Social Media Monitoring Firms
Utah recently became the latest state to enact legislation that bans schools from deploying social media monitoring firms that require students verify their social media user names and/or passwords. Utah joins Delaware, California, Michigan, and New Jersey in protecting their schools, students, and taxpayers from social media snake oil salesmen who are selling legal liability time bombs.
The Utah legislation appears to have been prompted because of a Time Magazine article that discussed the student-athlete social media policy of one Utah school. This academic institution appeared to require student-athletes sign a social media policy that stated, "To the extent that any federal, state, or local law prohibits the Athletic Department from accessing my social networking accounts, I hereby waive any and all such rights and protections." According to constitutional law expert Professor Phil Closius, this student-athlete social media policy was "clearly suspect". Under Utah's new law (H.B. 100), this policy is not just clearly suspect but against the law.
What does Utah's new law along with similar laws across the country mean for schools? In short, academic institutions need to re-examine their student-athlete social media policies and education programs to ensure compliance with all applicable state and federal laws. Athletic departments need to understand that social media is not just a public relations issue but a serious legal matter that requires the counsel of social media law experts who understand college athletics and NCAA compliance. Drafting and implementing improper student-athlete social media policies may create millions of dollars in legal liability.
Consultants who sell "student-athlete social media monitoring services" to athletic departments are selling legal liability time bombs. Deadspin has already exposed several companies as having no connection to college athletics before starting their "social media monitoring firms". Some companies that are approaching colleges appear to be making material misrepresentations to market their services. For example, how does someone transition from being a health care recruiter to a social media student-athlete compliance and education consultant overnight?
The bottom line is that states across the country are banning schools from being able to deploy firms to monitor and archive their students' personal digital content. These laws may cumulatively save schools around the United States hundreds of millions of dollars in monitoring, legal, compliance, and insurance costs.
In order for social media monitoring services to properly function students must at least verify their social media user names. Absent student verification these services are unable properly work. Furthermore, athletic departments should not be fooled into believing these services are compliant with all state and/or federal laws. In general, these companies also claim their services are educational tools while others claim they want to protect the online reputation of schools and/or students. Has anyone asked those who are approaching schools for their teaching credentials?
It appears that the founders of these companies have no verifiable experience that would lend any credibility to their claims. Consultants who are marketing student-athlete social media monitoring services to athletic departments do not understand social media, NCAA compliance, public policy, or the law; and they apparently care more about making a sale than protecting schools and student-athletes.
To learn more about these issues you may contact me at www.shearlaw.com.
Copyright 2013 by the Law Office of Bradley S. Shear, LLC All rights reserved.
The Utah legislation appears to have been prompted because of a Time Magazine article that discussed the student-athlete social media policy of one Utah school. This academic institution appeared to require student-athletes sign a social media policy that stated, "To the extent that any federal, state, or local law prohibits the Athletic Department from accessing my social networking accounts, I hereby waive any and all such rights and protections." According to constitutional law expert Professor Phil Closius, this student-athlete social media policy was "clearly suspect". Under Utah's new law (H.B. 100), this policy is not just clearly suspect but against the law.
What does Utah's new law along with similar laws across the country mean for schools? In short, academic institutions need to re-examine their student-athlete social media policies and education programs to ensure compliance with all applicable state and federal laws. Athletic departments need to understand that social media is not just a public relations issue but a serious legal matter that requires the counsel of social media law experts who understand college athletics and NCAA compliance. Drafting and implementing improper student-athlete social media policies may create millions of dollars in legal liability.
Consultants who sell "student-athlete social media monitoring services" to athletic departments are selling legal liability time bombs. Deadspin has already exposed several companies as having no connection to college athletics before starting their "social media monitoring firms". Some companies that are approaching colleges appear to be making material misrepresentations to market their services. For example, how does someone transition from being a health care recruiter to a social media student-athlete compliance and education consultant overnight?
The bottom line is that states across the country are banning schools from being able to deploy firms to monitor and archive their students' personal digital content. These laws may cumulatively save schools around the United States hundreds of millions of dollars in monitoring, legal, compliance, and insurance costs.
In order for social media monitoring services to properly function students must at least verify their social media user names. Absent student verification these services are unable properly work. Furthermore, athletic departments should not be fooled into believing these services are compliant with all state and/or federal laws. In general, these companies also claim their services are educational tools while others claim they want to protect the online reputation of schools and/or students. Has anyone asked those who are approaching schools for their teaching credentials?
It appears that the founders of these companies have no verifiable experience that would lend any credibility to their claims. Consultants who are marketing student-athlete social media monitoring services to athletic departments do not understand social media, NCAA compliance, public policy, or the law; and they apparently care more about making a sale than protecting schools and student-athletes.
To learn more about these issues you may contact me at www.shearlaw.com.
Copyright 2013 by the Law Office of Bradley S. Shear, LLC All rights reserved.
Monday, April 8, 2013
Arkansas Bans NCAA Student-Athlete Social Media Monitoring Companies
Arkansas has became the latest state to enact legislation that bans
schools from deploying social media monitoring firms to track their students' personal digital accounts. Arkansas joins Delaware, California, Michigan, New Jersey and Utah in protecting their
schools, students, and taxpayers from fear and misinformation.
Consultants who sell student-athlete social media monitoring services to athletic departments are selling legal liability time bombs. Deadspin has already exposed several companies as having no connection to college athletics before starting their "social media monitoring firms". Some companies that are approaching colleges appear to be making material misrepresentations to market their services.
One consultant quoted me (who appears to have no verifiable experience in college athletics, social media, law, or compliance before he started selling his services to NCAA schools) in a press release touting his social media monitoring service last year. Quoting me to market a service that may create tremendous legal liability for NCAA schools is very troubling. Lawyers and risk professionals who understand this issue would never endorse a service that may increase a school's legal liability and/or may advise an academic institution to violate state and/or federal law.
The bottom line is that states across the country are banning schools from being able to deploy firms to monitor and archive their students' personal digital content. These laws may cumulatively save schools around the United States hundreds of millions of dollars in monitoring, legal, compliance, and insurance costs.
To learn more about these issues you may contact me at www.shearlaw.com.
Copyright 2013 by the Law Office of Bradley S. Shear, LLC All rights reserved.
Consultants who sell student-athlete social media monitoring services to athletic departments are selling legal liability time bombs. Deadspin has already exposed several companies as having no connection to college athletics before starting their "social media monitoring firms". Some companies that are approaching colleges appear to be making material misrepresentations to market their services.
One consultant quoted me (who appears to have no verifiable experience in college athletics, social media, law, or compliance before he started selling his services to NCAA schools) in a press release touting his social media monitoring service last year. Quoting me to market a service that may create tremendous legal liability for NCAA schools is very troubling. Lawyers and risk professionals who understand this issue would never endorse a service that may increase a school's legal liability and/or may advise an academic institution to violate state and/or federal law.
The bottom line is that states across the country are banning schools from being able to deploy firms to monitor and archive their students' personal digital content. These laws may cumulatively save schools around the United States hundreds of millions of dollars in monitoring, legal, compliance, and insurance costs.
To learn more about these issues you may contact me at www.shearlaw.com.
Copyright 2013 by the Law Office of Bradley S. Shear, LLC All rights reserved.
Wednesday, January 16, 2013
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.
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.
Thursday, September 6, 2012
10 tips to determine if a sports social media consultant is a fraud
In the past couple of years, multiple consulting companies have suddenly appeared on the scene to claim they are sports social media experts, gurus, leaders, trainers, etc... These firms are pitching colleges and universities to hire them to monitor their student-athletes' Tweets, Facebook posts, YouTube videos, and/or to "educate" student-athletes, coaches, administrators, etc... about social media matters.
To claim one is a sports social media consultant the barrier to entry is very low. From looking at the lack of credentials from most of those selling themselves as social media experts it appears that the only tools needed are: Internet and phone access, and a Slideshare account. With these three things you can create a free or low cost website and/or a free blog, open a free Twitter account, and create social media presentations based upon the work of others. Some of these "self anointed social media experts" may also buy a software package or create an application to track the online activities of student-athletes that may create tremendous legal problems for the schools that utilize these programs.
To claim one is a sports social media consultant the barrier to entry is very low. From looking at the lack of credentials from most of those selling themselves as social media experts it appears that the only tools needed are: Internet and phone access, and a Slideshare account. With these three things you can create a free or low cost website and/or a free blog, open a free Twitter account, and create social media presentations based upon the work of others. Some of these "self anointed social media experts" may also buy a software package or create an application to track the online activities of student-athletes that may create tremendous legal problems for the schools that utilize these programs.
The Tweets, blog posts, and presentations of these self-called experts may appear to indicate that these consultants are the real McCoy. However, once due diligence is performed on these "social media experts" it becomes evident that almost none of them have any bona fide credentials or knowledge that demonstrates they should be advising NCAA schools, student-athletes, coaches, administrators, etc... on social media and/or any issues pertaining to college athletics.
To ensure that NCAA schools do not fall victim to these self-anointed experts who do not have the best interests of schools, athletic departments, and student-athletes in mind, below is a list of characteristics to help determine if a self described NCAA social media consultant, expert, guru, trainer, leader, etc... is a fraud:
1) The consultant advises schools to buy his social media monitoring software to track and/or archive student-athletes' password and/or non-password protected online activity.
2) The consultant advises schools to request or require students to register their social media user names and/or passwords with athletic departments and/or third parties.
5) The consultant incorrectly predicted how the NCAA's social media monitoring allegation against the University of North Carolina would be resolved.
6) The consultant follows more people on his professional Twitter account than are following him back.
7) The consultant's social media credentials appear too good to be true which may indicate social media credential fraud.
8) The consultant claims that schools that utilize his social media monitoring program will not be violating any current/future laws or creating the potential for tremendous legal liability.
9) The consultant has no verifiable professional social media experience prior to 2011.
To ensure that NCAA schools do not fall victim to these self-anointed experts who do not have the best interests of schools, athletic departments, and student-athletes in mind, below is a list of characteristics to help determine if a self described NCAA social media consultant, expert, guru, trainer, leader, etc... is a fraud:
1) The consultant advises schools to buy his social media monitoring software to track and/or archive student-athletes' password and/or non-password protected online activity.
2) The consultant advises schools to request or require students to register their social media user names and/or passwords with athletic departments and/or third parties.
3) The consultant advises schools to request or require that student-athletes Facebook Friend schools and/or third parties.
4) The consultant has no verifiable professional social media and/or sports experience before starting his sports social media consulting company.
5) The consultant incorrectly predicted how the NCAA's social media monitoring allegation against the University of North Carolina would be resolved.
6) The consultant follows more people on his professional Twitter account than are following him back.
7) The consultant's social media credentials appear too good to be true which may indicate social media credential fraud.
8) The consultant claims that schools that utilize his social media monitoring program will not be violating any current/future laws or creating the potential for tremendous legal liability.
9) The consultant has no verifiable professional social media experience prior to 2011.
10) The consultant has public Twitter conversations that may be better suited via direct message and/or another more discreet format.
If a social media consultant approaches an NCAA institution and has more than one of these characteristics it most likely indicates that the consultant is not the expert, leader, guru, etc... that he claims to be but a fraud whose advice may put the safety of a university and/or its students at risk and may create tremendous legal liability for universities, coaches, athletic department administrators, and/or student-athletes.
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.
If a social media consultant approaches an NCAA institution and has more than one of these characteristics it most likely indicates that the consultant is not the expert, leader, guru, etc... that he claims to be but a fraud whose advice may put the safety of a university and/or its students at risk and may create tremendous legal liability for universities, coaches, athletic department administrators, and/or student-athletes.
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, June 30, 2012
Penn State Sandusky emails prove NCAA schools should not social media monitor their student-athletes
With access comes responsibility. For more than a year, I have been stating that NCAA schools do not have a duty to social media monitor their student-athletes' password protected social media/digital content. Earlier this year, the NCAA stated loud and clear that its member schools do not have a blanket duty to monitor their student-athletes' public social networking accounts in the University of North Carolina Public Infractions Report.
The latest twist in the Penn State Jerry Sandusky child abuse scandal proves once again that NCAA schools must be careful when drafting their student-athlete social media policies. According to a new CNN report, it appears that Penn State's Athletic Director Tim Curley, Vice President Gary Schultz, and President Graham Spanier discussed via email how to handle their knowledge that Jerry Sandusky may have sexually abused a child on Penn State's campus. The CNN report appears to indicate that according to emails it has obtained, Coach Joe Paterno was not in favor of reporting the information about an alleged sexual assault by Sandusky to the police.
According to the e-mails obtained by CNN, Spanier emailed Curley on February 27, 2001 and stated, "The only downside for us if the message isn't heard and acted upon, and then we become vulnerable for not having reported it". If this email is authenticated, it clearly demonstrates that with access/knowledge comes responsibility. Spanier appears to admit in the email that Penn State may have potential legal liability for intentionally not reporting Sandusky to the police.
These e-mails CNN allegedly obtained were written in 2001. Digital evidence from eleven years ago may be the smoking gun that demonstrates that Penn State knew about Sandusky but intentionally did nothing to stop Sandusky because it chose to protect its reputation instead of children who were preyed upon by Sandusky. This digital evidence appears to be extremely damaging to Penn State and may help plaintiff's lawyers successfully argue that Penn State should pay tens of millions of dollars for intentionally covering up the Sandusky matter. Therefore, why would any university want to create more opportunities for lawsuits by monitoring and archiving the digital content of their student-athletes or employees?
Unfortunately, some schools are listening to companies with names like UDiligence or Varsity Monitor. According to Deadspin.com, Varsity Monitor has multiple credibility issues and both Varsity Monitor and UDiligence appeared to lack any connection to college athletics or social media before their formation. What if a school finds out or has a strong reason to believe that their football superstar who is a leading candidate for the Heisman Trophy is engaging in illegal activity because of social media monitoring? What if the illegal activity harms a third party and the school did nothing to stop their star athlete because the school wanted the prestige of a Heisman Trophy winner or a national championship? The legal liability of the school may be tremendous.
The bottom line is that NCAA schools must create sensible social media policies that do not 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 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
The latest twist in the Penn State Jerry Sandusky child abuse scandal proves once again that NCAA schools must be careful when drafting their student-athlete social media policies. According to a new CNN report, it appears that Penn State's Athletic Director Tim Curley, Vice President Gary Schultz, and President Graham Spanier discussed via email how to handle their knowledge that Jerry Sandusky may have sexually abused a child on Penn State's campus. The CNN report appears to indicate that according to emails it has obtained, Coach Joe Paterno was not in favor of reporting the information about an alleged sexual assault by Sandusky to the police.
According to the e-mails obtained by CNN, Spanier emailed Curley on February 27, 2001 and stated, "The only downside for us if the message isn't heard and acted upon, and then we become vulnerable for not having reported it". If this email is authenticated, it clearly demonstrates that with access/knowledge comes responsibility. Spanier appears to admit in the email that Penn State may have potential legal liability for intentionally not reporting Sandusky to the police.
These e-mails CNN allegedly obtained were written in 2001. Digital evidence from eleven years ago may be the smoking gun that demonstrates that Penn State knew about Sandusky but intentionally did nothing to stop Sandusky because it chose to protect its reputation instead of children who were preyed upon by Sandusky. This digital evidence appears to be extremely damaging to Penn State and may help plaintiff's lawyers successfully argue that Penn State should pay tens of millions of dollars for intentionally covering up the Sandusky matter. Therefore, why would any university want to create more opportunities for lawsuits by monitoring and archiving the digital content of their student-athletes or employees?
Unfortunately, some schools are listening to companies with names like UDiligence or Varsity Monitor. According to Deadspin.com, Varsity Monitor has multiple credibility issues and both Varsity Monitor and UDiligence appeared to lack any connection to college athletics or social media before their formation. What if a school finds out or has a strong reason to believe that their football superstar who is a leading candidate for the Heisman Trophy is engaging in illegal activity because of social media monitoring? What if the illegal activity harms a third party and the school did nothing to stop their star athlete because the school wanted the prestige of a Heisman Trophy winner or a national championship? The legal liability of the school may be tremendous.
The bottom line is that NCAA schools must create sensible social media policies that do not 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 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Saturday, June 23, 2012
Penn State Sandusky guilty verdict proves NCAA schools should not hire social media monitoring companies to spy on their student-athletes or employees
The Penn State sex scandal is the worst scandal that any NCAA athletic department has ever encountered. Late last night, a jury found Jerry Sandusky, the former defensive coordinator of Penn State's football team guilty of 45 of 48 counts of child sex abuse.
Jerry Sandusky is by far the worst monster to have ever coached at an NCAA school. My heart goes out to all of Sandusky's victims. According to published media reports, it appears that Penn State may have known that Sandusky was a sexual predator since at least 1998 when he was initially investigated by Penn State Police. Unfortunately, at that time nothing was done to stop this predator from having access to Penn State facilities with young boys.
Since at least 2002, the Penn State athletic department knew about allegations that Sandusky may have raped a young boy at its athletic facilities but did nothing to report him to law enforcement or to stop him from having access to its facilities. Since it appears that the athletic department knew or should have known that Sandusky may be committing multiple sexual abuse crimes on its campus it may have significant civil legal liability. Administrators who lied about their knowledge of Sandusky's alleged criminal activities when questioned by police may also have criminal legal liability. In addition to potentially having criminal legal liability for lying about their knowledge of Sandusky's then alleged criminal activities, Penn State and its employees may also have significant civil liability for Sandusky's on and off-campus activities since it appears that Penn State knew that Sandusky may be committing multiple sexual crimes and did nothing to stop him.
If Penn State wasn't informed about Sandusky's alleged sexual abuse of young boys it would be very difficult to prove that Penn State and/or any of its employees should be held liable for not stopping these terrible activities. However, since it appears that Penn State coaches, athletic department members, and members of the university administration knew or should have known that Sandusky may be committing major crimes on and off campus Penn State and some current and/or former employees may have significant legal liability.
The Virgina Tech case should have been a wake up call that NCAA schools should not require their student-athletes or employees to provide access to their password protected digital content and/or to turn over their social media usernames. Next, the lawsuit by the family of a University of Virginia lacrosse player who was murdered by another student-athlete should have been another wake up call that athletic departments must stop these practices. Now, the Penn State guilty verdict appears to prove that if a university and/or its employees want to avoid legal liability for the digital content of their student-athletes or employees they must not require students or employees to provide access to their password protected personal digital content.
On November 15, 2011, I stated, if Penn State was aware of Sandusky's alleged criminal activities and failed to stop him the school may have major legal liability issues to defend against. Since it appears that Penn State knew about Sandusky's criminal behavior the economic cost of this matter to Penn State may be north of $100 million dollars due to court costs, litigation expenses, attorney fees, investigation costs, judgements, settlements, reputation costs, etc... It is premature to determine how much of these costs the school's insurance companies will pay but there is already litigation regarding the matter.
The Penn State sex scandal once again proves that NCAA schools need to ensure that their social media policies do not create unintended legal liability. Compliance personnel, coaches, or university employees who require their student-athletes or employees to turn over their social media usernames, passwords, or to download social media monitoring software, or to use any other unethical or illegal method to obtain access to their students' or employees' personal password protected digital content may create millions of dollars of legal liability for their schools and/or themselves.
To learn more about these issues you may contact me at http://shearlaw.com.
Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Jerry Sandusky is by far the worst monster to have ever coached at an NCAA school. My heart goes out to all of Sandusky's victims. According to published media reports, it appears that Penn State may have known that Sandusky was a sexual predator since at least 1998 when he was initially investigated by Penn State Police. Unfortunately, at that time nothing was done to stop this predator from having access to Penn State facilities with young boys.
Since at least 2002, the Penn State athletic department knew about allegations that Sandusky may have raped a young boy at its athletic facilities but did nothing to report him to law enforcement or to stop him from having access to its facilities. Since it appears that the athletic department knew or should have known that Sandusky may be committing multiple sexual abuse crimes on its campus it may have significant civil legal liability. Administrators who lied about their knowledge of Sandusky's alleged criminal activities when questioned by police may also have criminal legal liability. In addition to potentially having criminal legal liability for lying about their knowledge of Sandusky's then alleged criminal activities, Penn State and its employees may also have significant civil liability for Sandusky's on and off-campus activities since it appears that Penn State knew that Sandusky may be committing multiple sexual crimes and did nothing to stop him.
If Penn State wasn't informed about Sandusky's alleged sexual abuse of young boys it would be very difficult to prove that Penn State and/or any of its employees should be held liable for not stopping these terrible activities. However, since it appears that Penn State coaches, athletic department members, and members of the university administration knew or should have known that Sandusky may be committing major crimes on and off campus Penn State and some current and/or former employees may have significant legal liability.
The Virgina Tech case should have been a wake up call that NCAA schools should not require their student-athletes or employees to provide access to their password protected digital content and/or to turn over their social media usernames. Next, the lawsuit by the family of a University of Virginia lacrosse player who was murdered by another student-athlete should have been another wake up call that athletic departments must stop these practices. Now, the Penn State guilty verdict appears to prove that if a university and/or its employees want to avoid legal liability for the digital content of their student-athletes or employees they must not require students or employees to provide access to their password protected personal digital content.
On November 15, 2011, I stated, if Penn State was aware of Sandusky's alleged criminal activities and failed to stop him the school may have major legal liability issues to defend against. Since it appears that Penn State knew about Sandusky's criminal behavior the economic cost of this matter to Penn State may be north of $100 million dollars due to court costs, litigation expenses, attorney fees, investigation costs, judgements, settlements, reputation costs, etc... It is premature to determine how much of these costs the school's insurance companies will pay but there is already litigation regarding the matter.
The Penn State sex scandal once again proves that NCAA schools need to ensure that their social media policies do not create unintended legal liability. Compliance personnel, coaches, or university employees who require their student-athletes or employees to turn over their social media usernames, passwords, or to download social media monitoring software, or to use any other unethical or illegal method to obtain access to their students' or employees' personal password protected digital content may create millions of dollars of legal liability for their schools and/or themselves.
To learn more about these issues you may contact me at http://shearlaw.com.
Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Friday, May 18, 2012
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.
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.
Tuesday, May 8, 2012
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.
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.
Monday, March 26, 2012
Schools May Need a Search Warrant To Access Their Student-Athletes' Personal Password Protected Electronic Accounts
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.
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.
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.
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