Facebook has firmly come out against those employers and schools who are requiring employees, job applicants, student-athletes, and college applicants to provide them access to personal password protected Facebook accounts. Facebook's statement in part reads:
"If you are a Facebook user, you should never have to share your password, let anyone access your account, or do anything that might jeopardize the security of your account or violate the privacy of your friends."
Social Media Monitoring Companies such as Varsity Monitor, UDiligence, and Centrix Social appear to be advising some of their clients to violate Facebook's Terms of Service, along with the constitutional rights of student-athletes, and the personal privacy rights of student-athletes' Facebook Friends. As I have stated over and over again, in general, employers and public schools may not require access to personal password protected electronic content.
To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Friday, March 23, 2012
Friday, March 16, 2012
Dharun Ravi is Found Guilty of Tampering With Evidence For Tweet Deletion
Breaking news. Dharun Ravi has been found guilty of tampering with evidence because he deleted at least one tweet. I first wrote about his case on May 1, 2011. According to the New Jersey Star here is a breakdown of the verdict.
This case should be a wake up call for everyone who utilizes social media, text messages, email, and other digital platforms that your online activities are just as important if not more important than your real world activities because of the digital footprints that are created.
To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
This case should be a wake up call for everyone who utilizes social media, text messages, email, and other digital platforms that your online activities are just as important if not more important than your real world activities because of the digital footprints that are created.
To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Wednesday, March 14, 2012
Multi-Milion Dollar Jury Verdict Against Virginia Tech Proves Schools Should Not Create A Duty To Social Media Monitor
The 2007 Virginia Tech massacre that left 33 dead on campus was a terrible tragedy. Earlier today, a jury found Virginia Tech negligent for its delay in warning its campus about the first shootings. Two of the families of those who were killed were awarded $4 million dollars each by a jury.
This case demonstrates why schools should not utilize the services of social media monitoring companies to review the password protected content of their students. On March 12, 2012, the NCAA stated that there is no "blanket duty on institutions to monitor social networking sites." Therefore, if there is no blanket compliance duty to social media monitor why create a legal duty to do so which may lead to multi-million dollar judgements for negligent social media monitoring?
After the the University of North Carolina Public Infractions Report was released, Varsity Monitor, a company that sells social media monitoring services responded to a Tweet that links to an article where I am quoted by Tweeting, "It is still best practice for the athletic dept to continue to monitor social media for brand and athlete protection & edu" (see below):
Now that two $4 million dollar jury verdicts have been returned against an academic institution for a delay in properly warning its students about a killer being on the loose on campus, imagine if a school follows the above advice by Varsity Monitor and a tragedy occurs that social media monitoring should have warned against but did not? Instead of multiple $4 million dollar jury verdicts would it be multiple $25 million or $50 million or $100 million dollar negligent social media monitoring jury verdicts?
To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
This case demonstrates why schools should not utilize the services of social media monitoring companies to review the password protected content of their students. On March 12, 2012, the NCAA stated that there is no "blanket duty on institutions to monitor social networking sites." Therefore, if there is no blanket compliance duty to social media monitor why create a legal duty to do so which may lead to multi-million dollar judgements for negligent social media monitoring?
After the the University of North Carolina Public Infractions Report was released, Varsity Monitor, a company that sells social media monitoring services responded to a Tweet that links to an article where I am quoted by Tweeting, "It is still best practice for the athletic dept to continue to monitor social media for brand and athlete protection & edu" (see below):
Now that two $4 million dollar jury verdicts have been returned against an academic institution for a delay in properly warning its students about a killer being on the loose on campus, imagine if a school follows the above advice by Varsity Monitor and a tragedy occurs that social media monitoring should have warned against but did not? Instead of multiple $4 million dollar jury verdicts would it be multiple $25 million or $50 million or $100 million dollar negligent social media monitoring jury verdicts?
To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Monday, March 12, 2012
NCAA: Schools Have No Blanket Duty To Monitor Social Networking Sites Of Student-Athletes
The NCAA has stated in the University of North Carolina Public Infractions Report dated March 12, 2012 (page 11), that it "declines to impose a blanket duty on institutions to monitor social networking sites.Consistent with the duty to monitor other information outside the campus setting (beyond on-campus activities such as countable athletically related activities, financial aid, satisfactory progress, etc.), such sites should be part of the monitoring effort if the institution becomes aware of an issue that might be resolved in some part by reviewing information on a site."
In other words, an NCAA member institution's duty to monitor is the same whether its a student's online or offline activities. Nothing more. I praise the NCAA for its decision in this case. The NCAA's decision mirrors the opinion that I stated on September 2, 2011 when I said, "it may be advisable to check up on a student-athlete's public online posts in the same manner as his/her real world activity."
The NCAA's decision today has clearly stated that schools do not need to engage costly social media monitoring services that require students to provide access to their password protected electronic content. The companies that push these services are selling snake oil that is essentially a legal liability time bomb and they are preying off a school's fear. This has lead to some schools violating the constitutional rights of its students.
There is a lack of knowledge regarding social media, compliance, and the law. Unfortunately, several self-serving companies have tried to fill the void in college athletics and these companies have not only provided bad advice that may create tremendous legal liability for their clients but they also incorrectly interpreted NCAA compliance rules. These social media consultants have advised their NCAA member clients to waste tens of thousands of dollars on services they do not need. Every school that has engaged these social media monitoring services may want to demand a full refund from these consultants who do not understand social media, NCAA compliance rules, public policy, or the law.
To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
In other words, an NCAA member institution's duty to monitor is the same whether its a student's online or offline activities. Nothing more. I praise the NCAA for its decision in this case. The NCAA's decision mirrors the opinion that I stated on September 2, 2011 when I said, "it may be advisable to check up on a student-athlete's public online posts in the same manner as his/her real world activity."
The NCAA's decision today has clearly stated that schools do not need to engage costly social media monitoring services that require students to provide access to their password protected electronic content. The companies that push these services are selling snake oil that is essentially a legal liability time bomb and they are preying off a school's fear. This has lead to some schools violating the constitutional rights of its students.
There is a lack of knowledge regarding social media, compliance, and the law. Unfortunately, several self-serving companies have tried to fill the void in college athletics and these companies have not only provided bad advice that may create tremendous legal liability for their clients but they also incorrectly interpreted NCAA compliance rules. These social media consultants have advised their NCAA member clients to waste tens of thousands of dollars on services they do not need. Every school that has engaged these social media monitoring services may want to demand a full refund from these consultants who do not understand social media, NCAA compliance rules, public policy, or the law.
To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Saturday, March 10, 2012
Minnesota School District Sued For Violating the Social Media Privacy Rights Of A Student
A Minnesota school district has allegedly violated the social media privacy rights of one of its students. According to an American Civil Liberties Union press release: "the American Civil Liberties Union of Minnesota filed a lawsuit in Federal District Court against Minnewaska Area Schools and the Pope County Sheriff's office for violating the constitutional rights of a minor student."
The ACLU states, "In early 2011 R.S. posted a comment, while at home, on her Facebook page about her dislike of a school staff member. The school learned about the comment, and R.S. received a detention and was forced to write an apology to the staff member. She was disciplined again when she cursed on her Facebook page, complaining that someone reported her to the school. This time she was given an in-school suspension and was prohibited from attending a school field trip. The ACLU-MN contends that these sanctions violate her First Amendment right to freedom of speech. In a second incident R.S. was brought into a school administrator's office where she was coerced to turn over (against her will) login information to her Facebook and email accounts because of allegations that she had online conversations about sex with another student off-campus. Present at the search was a local deputy along with two school officials."
I find it very troubling that school officials and a local deputy would believe that it is constitutional to require a student to provide them her user name and password of a personal electronic account. If a student is forced to turn over her password to a social media account without a court order what will stop a school from requiring a student to turn over a personal email password and user name without a court order? This behavior is a clear 1st and 4th Amendment and possibly a 5th Amendment violation of the U.S. Constitution.
This behavior is not limited to violating the privacy rights of middle schoolers. According to an MSNBC report, employers and universities across the country are violating the privacy rights employees, students, and applicants.
There may be some situations where requiring access to personal password protected electronic content may be necessary. For example, some high security clearance jobs, some national security positions, and some regulated industries have invasive background checks. However, in the overwhelming majority of positions, there should be protection against requiring access to password protected electronic content. With access comes responsibility, so employers and schools that demand this information may open themselves up to unforeseen legal liability and may create new legal duties where none existed before. Therefore, why risk a multi-million dollar lawsuit and judgement?
There may be some situations where requiring access to personal password protected electronic content may be necessary. For example, some high security clearance jobs, some national security positions, and some regulated industries have invasive background checks. However, in the overwhelming majority of positions, there should be protection against requiring access to password protected electronic content. With access comes responsibility, so employers and schools that demand this information may open themselves up to unforeseen legal liability and may create new legal duties where none existed before. Therefore, why risk a multi-million dollar lawsuit and judgement?
To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Thursday, March 8, 2012
Maryland Legislation Would Protect Employee and Job Applicant Social Media Privacy Rights
The state of Maryland continues to lead the way regarding social media and the law. Whether its creating social media election authority regulations or seminal case law on social media evidence authentication I am proud to say that my home state's elected leaders and judiciary have set the benchmark for the rest of the country to follow regarding social media and the law.
During this year's legislative session, Maryland Senate Bill 433 and House Bill 964 were introduced and if passed they will prohibit employers from requiring employees and applicants from disclosing their social media user names and passwords.
According to the synopsis on the Maryland Legislature's website of Senate Bill 433 it states:
Labor and Employment – User Name and Password Privacy Protection and Exclusions
"FOR the purpose of prohibiting an employer from requesting or requiring that an employee or applicant disclose any user name, password, or other means for accessing a personal account or service through certain electronic communications devices; prohibiting an employer from taking, or threatening to take, certain disciplinary actions for an employee’s refusal to disclose certain password and related information; prohibiting an employer from failing or refusing to hire an applicant as a result of the applicant’s refusal to disclose certain password and related information..."
According to the synopsis on the Maryland Legislature's website of House Bill 964 it states:
Labor and Employment – User Name and Password Privacy Protection
"FOR the purpose of prohibiting an employer from requesting or requiring that an employee or applicant disclose any user name, password, or other means for accessing a personal account or service through certain electronic communications devices; prohibiting an employer from taking, or threatening to take, certain disciplinary actions for an employee’s refusal to disclose certain password and related information; prohibiting an employer from failing or refusing to hire an applicant as a result of the applicant’s refusal to disclose certain password and related information..."
The legislation is a win-win for employers, employees, and taxpayers. The bills are designed to protect employee privacy while still enabling the securities and other regulated industries to comply with their strict compliance regulations.
I encourage everyone who reads this to reach out to Maryland's legislators to voice support for these bills and to lobby your state legislatures to pass similar legislation. These bills are a win for employers, employees, and taxpayers.
(Full Disclosure: I am not being paid for my work on this legislation. I believe that privacy rights still matter in the Social Media Age and I want to protect employers, employees, and taxpayers from unforeseen legal issues that may arise if these practices continue. Therefore, I have been in constant contact with Maryland Senator Ronald Young and Maryland Delegate Shawn Tarrant to work with them to create a common sense solution to this problem that protects the interests of employers, employees, and taxpayers.)
To learn how social media intersects with the law you may contact me at http://shearlaw.com/attorney_profile.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
During this year's legislative session, Maryland Senate Bill 433 and House Bill 964 were introduced and if passed they will prohibit employers from requiring employees and applicants from disclosing their social media user names and passwords.
According to the synopsis on the Maryland Legislature's website of Senate Bill 433 it states:
Labor and Employment – User Name and Password Privacy Protection and Exclusions
"FOR the purpose of prohibiting an employer from requesting or requiring that an employee or applicant disclose any user name, password, or other means for accessing a personal account or service through certain electronic communications devices; prohibiting an employer from taking, or threatening to take, certain disciplinary actions for an employee’s refusal to disclose certain password and related information; prohibiting an employer from failing or refusing to hire an applicant as a result of the applicant’s refusal to disclose certain password and related information..."
According to the synopsis on the Maryland Legislature's website of House Bill 964 it states:
Labor and Employment – User Name and Password Privacy Protection
"FOR the purpose of prohibiting an employer from requesting or requiring that an employee or applicant disclose any user name, password, or other means for accessing a personal account or service through certain electronic communications devices; prohibiting an employer from taking, or threatening to take, certain disciplinary actions for an employee’s refusal to disclose certain password and related information; prohibiting an employer from failing or refusing to hire an applicant as a result of the applicant’s refusal to disclose certain password and related information..."
The legislation is a win-win for employers, employees, and taxpayers. The bills are designed to protect employee privacy while still enabling the securities and other regulated industries to comply with their strict compliance regulations.
I encourage everyone who reads this to reach out to Maryland's legislators to voice support for these bills and to lobby your state legislatures to pass similar legislation. These bills are a win for employers, employees, and taxpayers.
(Full Disclosure: I am not being paid for my work on this legislation. I believe that privacy rights still matter in the Social Media Age and I want to protect employers, employees, and taxpayers from unforeseen legal issues that may arise if these practices continue. Therefore, I have been in constant contact with Maryland Senator Ronald Young and Maryland Delegate Shawn Tarrant to work with them to create a common sense solution to this problem that protects the interests of employers, employees, and taxpayers.)
To learn how social media intersects with the law you may contact me at http://shearlaw.com/attorney_profile.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Saturday, February 25, 2012
Service of Process Via Social Media and Authentication
In 2002, a U.S. court approved service of process via email. In 2008, an Australian court first allowed for service of process via Facebook and then earlier this week a UK High Court Judge approved service of process via Facebook. Therefore, service of process via electronic means is gaining acceptance around the world and it may only be a matter of time before a U.S. court will allow for service of process via social media.
Before a U.S. court allows service of process via social media it should understand the authentication issues involved. During my discussion with ABC News about this issue I stated, "[a]uthentication is a major issue since you must be sure that the person with whom you are trying to serve online is the same person offline. You don’t want to have someone’s due process rights infringed upon due to not being properly notified.”
Maryland's highest court came out with a seminal decision almost a year ago discussing authentication of social media evidence. The court understood that just because a social media profile appears to be genuine does not make it so. A person must do their due diligence to ensure that a social media account is the real McCoy.
Therefore, before a U.S. judge allows for service via social media the court must ensure that the person being served online is the same person offline. Authentication must not become an afterthought.
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.
Before a U.S. court allows service of process via social media it should understand the authentication issues involved. During my discussion with ABC News about this issue I stated, "[a]uthentication is a major issue since you must be sure that the person with whom you are trying to serve online is the same person offline. You don’t want to have someone’s due process rights infringed upon due to not being properly notified.”
Maryland's highest court came out with a seminal decision almost a year ago discussing authentication of social media evidence. The court understood that just because a social media profile appears to be genuine does not make it so. A person must do their due diligence to ensure that a social media account is the real McCoy.
Therefore, before a U.S. judge allows for service via social media the court must ensure that the person being served online is the same person offline. Authentication must not become an afterthought.
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.
Tuesday, February 21, 2012
Dharun Rhavi Case Proves Some Universities Must Rethink Their Social Media Policies
Some colleges and universities may have social media policies that violate the U.S. Constitution. As I stated on September 26, 2011, the University of North Carolina's social media policy for its student-athletes is very troubling and every single day that UNC has this policy in place the university is increasing its legal liability.
Schools that require their students to turn over their social media user names, and/or account names, and/or passwords, and/or require students to Facebook Friend university employees and/or download monitoring software onto their personal electronic devices to monitor all of their students' online activity are creating a legal minefield they do not understand.
This week the tragic case of Rutgers' student Tyler Clementi is back in the news. For those not familiar with the matter, I first wrote about it on October 6, 2010 and then again on May 1, 2011. Prosecutors allege that Dharun Rhavi's online activity contributed to Tyler Clementi's suicide. In addition, the prosecution has charged Rhavi with tampering with online evidence.
If Rutgers was monitoring the social media activity of Clementi and/or Rhavi and did not act to stop the online activity that is alleged to have contributed to Clementi's death Rutgers may be sued for negligent social media monitoring. However, if Rutgers was only monitoring the social media activity of some of its students but not all of its students Rutgers may be sued for discrimination. Multiple lawyers and risk professionals have already discussed the tremendous liability schools may encounter social media monitoring their students. Therefore, schools must tread very carefully when creating a social media policy.
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 reserve
Schools that require their students to turn over their social media user names, and/or account names, and/or passwords, and/or require students to Facebook Friend university employees and/or download monitoring software onto their personal electronic devices to monitor all of their students' online activity are creating a legal minefield they do not understand.
This week the tragic case of Rutgers' student Tyler Clementi is back in the news. For those not familiar with the matter, I first wrote about it on October 6, 2010 and then again on May 1, 2011. Prosecutors allege that Dharun Rhavi's online activity contributed to Tyler Clementi's suicide. In addition, the prosecution has charged Rhavi with tampering with online evidence.
If Rutgers was monitoring the social media activity of Clementi and/or Rhavi and did not act to stop the online activity that is alleged to have contributed to Clementi's death Rutgers may be sued for negligent social media monitoring. However, if Rutgers was only monitoring the social media activity of some of its students but not all of its students Rutgers may be sued for discrimination. Multiple lawyers and risk professionals have already discussed the tremendous liability schools may encounter social media monitoring their students. Therefore, schools must tread very carefully when creating a social media policy.
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 reserve
Friday, February 3, 2012
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.
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.
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