Governor Jerry Brown of California has announced that he has signed California SB 1349 and California AB 1844. California has now become the first state in the country to enact comprehensive social media privacy legislation.
Earlier this year, Maryland became the first state to enact social media privacy legislation that protects employees' digital privacy while also protecting employers from frivolous social media related lawsuits. Soon after, Delaware enacted social media privacy legislation that protects college students and post-secondary schools. In August, Illinois enacted legislation that protects employees and employers.
With the enactment of California's SB 1349, California becomes the second state to protect the social media privacy of post-secondary students which may also protect California schools from frivolous social media related lawsuits and snake oil salesmen who are pitching schools on the need for costly social media monitoring programs that are legal liability time bombs. On August 21, 2012, I stated,
"If SB 1349 is enacted, it may protect California schools from millions
of dollars in additional compliance and regulatory costs, and millions
of dollars in potential legal liability costs associated with social
media related lawsuits."
With the enactment of California's AB 1844, California becomes the third state to protect the social media privacy rights of employees which may also protect California employers from frivolous social media related lawsuits. On August 30, 2012, I sated, "
AB 1844
is a huge win for the business community because it may provide
California businesses with a legal liability shield from plaintiffs who
may allege that businesses have a legal duty to monitor their
employees' personal password protected digital content. This
legislation may collectively save California businesses tens of
millions of dollars a year in costs to monitor their employees'
personal digital accounts. In addition, this law may save California
businesses tens of millions of dollars per year on cyber liability
insurance premiums that would accompany a duty to monitor employees in
the digital/social media space.
The bottom line is that California is leading the way in the enactment social media privacy legislation that protects schools, students, prospective students, employers, employees, and job applicants.
(Full Disclosure: I advised California State Senator Yee's office on SB 1349 and Assembly Member Campos' office AB 1844.)
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.
Thursday, September 27, 2012
Saturday, September 15, 2012
U.S. Court: Student-Athlete Social Media Monitoring Violates the 1st and 4th Amendment
A U.S. District Court in Minnesota has stated that public schools that require access to their students' password protected digital content are violating their students' 1st and 4th Amendment rights. In R.S. ex rel. S.S. v. Minnewaska Area Dist. No 2149 2012 WL 3870868, a student was allegedly intimidated into turning over her Facebook username and password, and her personal email username and password so the school could view her password protected digital content for references to a hall monitor whom the student felt was treating her unfairly.
On June 22, 2011, I stated that if the NCAA requires its students to turn over their social media credentials, "The NCAA is going down a very slippery slope that has major First Amendment and privacy implications. I believe the NCAA should rethink its social media compliance allegations against UNC."
and
on September 27, 2011, I stated "I believe UNC's new social media policy may violate the 1st, 4th, and 14th Amendments of the U.S. Constitution" because UNC's policy requires their student-athletes to provide the school access to their password protected digital content.
Public schools that require any of their students to register their social media usernames, or to provide access to their password protected digital content via required Facebook Friending or the installation of a third-party software application for any reason are in clear violation of the 1st and 4th Amendment. Therefore, any school that utilizes a social media monitoring company to track their student-athletes online may want to change their policy immediately before their legal liability exponentially increases.
To learn more about these issues you may contact me at www.shearlaw.com.
Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Friday, September 14, 2012
Twitter Hands Over Occupy Wall Street Tweets
According to The Associated Press, Twitter has complied with a judge's order to hand over the Tweets of an Occupy Wall Street protestor. Twitter was ordered by Judge Matthew Sciarrino Jr. to turn over the information by today or face steep fines if it refused to do so.
On April 23, 2012, I stated that, "Once a Tweet is public to the entire world you don't have an expectation of privacy even if the Tweet has been deleted. Former Congressman Anthony Weiner learned the hard way (no pun intended) that once you post something publicly you have no expectation of privacy.
On July 3, 2012, I stated that, "If the Tweets had been on a protected Twitter account then a warrant may have been required to access the Tweets. In general, I have no problem with law enforcement obtaining and utilizing social media evidence. However, the government must go through the proper legal channels to obtain, authenticate, and utilize social media evidence at trial.
On September 11, 2012, I stated, "while I applaud Twitter fighting for the digital privacy rights of its users, I believe that continuing to fight a subpoena for content that was once public is a losing battle. However, I believe that Twitter along with other social media companies should continue fighting for the personal privacy rights of its users."
There may be future situations where the facts may better support an expectation of privacy for the Tweeter. However, it appears that the Tweets requested by the Manhattan District Attorney were intended for the entire world to view after they were posted. Since the account that posted the requested Tweets did not activate its privacy settings, I believe it is very difficult to successfully argue that there is an expectation of privacy for the Tweets in question.
To learn how social media intersects with the law you may contact me at www.shearlaw.com.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
On April 23, 2012, I stated that, "Once a Tweet is public to the entire world you don't have an expectation of privacy even if the Tweet has been deleted. Former Congressman Anthony Weiner learned the hard way (no pun intended) that once you post something publicly you have no expectation of privacy.
On July 3, 2012, I stated that, "If the Tweets had been on a protected Twitter account then a warrant may have been required to access the Tweets. In general, I have no problem with law enforcement obtaining and utilizing social media evidence. However, the government must go through the proper legal channels to obtain, authenticate, and utilize social media evidence at trial.
On September 11, 2012, I stated, "while I applaud Twitter fighting for the digital privacy rights of its users, I believe that continuing to fight a subpoena for content that was once public is a losing battle. However, I believe that Twitter along with other social media companies should continue fighting for the personal privacy rights of its users."
There may be future situations where the facts may better support an expectation of privacy for the Tweeter. However, it appears that the Tweets requested by the Manhattan District Attorney were intended for the entire world to view after they were posted. Since the account that posted the requested Tweets did not activate its privacy settings, I believe it is very difficult to successfully argue that there is an expectation of privacy for the Tweets in question.
To learn how social media intersects with the law you may contact me at www.shearlaw.com.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Wednesday, September 12, 2012
NYPD drafts social media investigation rules
According to the New York Daily News, the New York City Police Department has created official rules on how to utilize social media to investigate potential criminal activity. Since the NYPD developed CompStat, it has been recognized as a leader in utilizing new digital technologies for law enforcement.
The New York Daily News states that under the new rules, NYPD "officers involved in probes involving social media may register their aliases with the department and use a department-issued laptop whose Internet-access card can't be traced back to the NYPD."
In general, I believe that the NYPD should take their rules that govern their activities offline and transfer them online. Since police officers go under cover to fight crime in the real world they should be able to do the same in the digital world. However, if a potential suspect refuses to provide access to an under cover officer via turning down a Facebook Friend request or by changing his privacy settings, the NYPD should then be required to follow the proper legal channels to obtain access to the password protected digital content.
There needs to be an appropriate balance between the needs of law enforcement and the right to privacy. As more police departments follow the NYPD's lead, there may be more opportunities to determine how to balance these issues.
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, September 11, 2012
Twitter must produce Occupy Wall Street Tweets
Twitter has been ordered to turn over the public Tweets of Occupy Wall Street protestor Malcolm Harris. The ruling is not surprising since the Tweets were previously public and anyone with Internet access could view them. The Tweets are no longer available online; however, they have been saved on Twitter's servers. Twitter and Harris' attorney have been trying to quash the Manhattan district attorney's subpoena demanding the Tweets but have been unsuccessful.
On April 23, 2012, I stated that, "Once a Tweet is public to the entire world you don't have an expectation of privacy even if the Tweet has been deleted. Former Congressman Anthony Weiner learned the hard way (no pun intended) that once you post something publicly you have no expectation of privacy.
On July 3, 2012, I stated that, "If the Tweets had been on a protected Twitter account then a warrant may have been required to access the Tweets. In general, I have no problem with law enforcement obtaining and utilizing social media evidence. However, the government must go through the proper legal channels to obtain, authenticate, and utilize social media evidence at trial.
While I applaud Twitter fighting for the digital privacy rights of its users, I believe that continuing to fight a subpoena for content that was once public is a losing battle. However, I believe that Twitter along with other social media companies should continue fighting for the personal privacy rights of its users.
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.
On April 23, 2012, I stated that, "Once a Tweet is public to the entire world you don't have an expectation of privacy even if the Tweet has been deleted. Former Congressman Anthony Weiner learned the hard way (no pun intended) that once you post something publicly you have no expectation of privacy.
On July 3, 2012, I stated that, "If the Tweets had been on a protected Twitter account then a warrant may have been required to access the Tweets. In general, I have no problem with law enforcement obtaining and utilizing social media evidence. However, the government must go through the proper legal channels to obtain, authenticate, and utilize social media evidence at trial.
While I applaud Twitter fighting for the digital privacy rights of its users, I believe that continuing to fight a subpoena for content that was once public is a losing battle. However, I believe that Twitter along with other social media companies should continue fighting for the personal privacy rights of its users.
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.
Thursday, September 6, 2012
Will Australia's proposed digital data retention law put its citizens at risk?
Governments around the world are trying to determine how to implement digital public policy that takes into account how people are utilizing social media and other new technology platforms. Unfortunately, some lawmakers and governments are making proposals that may have unintended side effects.
For example, the Australian government recently proposed a digital data retention law that may create an undue burden on Internet service providers and technology companies. In addition, this proposal sharply curtails Internet users' digital privacy and creates more opportunities for cyber criminals. According to Computerworld, if enacted the new law would require technology companies to retain their users' data for up to two years which may include their customers' web surfing history information.
Putting aside the privacy issues, the Australian government may not realize that the more data a company is required to collect the greater its compliance costs and cyber liability insurance premiums. More data retention means increased server costs, higher electricity bills, greater security costs, etc....
While the intention of the proposed law is noble in that the government believes the law would assist in fighting crime, there may be some unintended side effects. When companies collect more data about their customers they become bigger targets for cyber criminals.
Therefore, it is imperative for governments to create sound digital public policy that properly weighs all of these concerns.
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.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC All rights reserved.
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.
Thursday, August 30, 2012
California: First state to pass comprehensive social media privacy legislation
California has become the first state to pass social media privacy legislation that protects employers/employees/job applicants and schools/students/student applicants. According to The Recorder, California has passed AB 1844 which prohibits employers from requiring access to their employees' or job applicants' personal social media credentials and personal password protected digital content. Last week, California passed student social media privacy legislation that would prohibit post-secondary educational institutions from requiring access to their students' or student applicants' personal social media credentials and personal password protected digital content.
Earlier this year, Maryland and Illinois enacted social media privacy legislation that may protect employers from social media related lawsuits while also protecting the personal privacy of employees and job applicants. Last month, Delaware enacted social media privacy legislation that may protect schools against social media related lawsuits while also protecting the personal privacy of students and student applicants. However, California is the first state to pass comprehensive legislation that protects employers/employees/job applicants and schools/students/student applicants. If Governor Brown signs both SB 1349 and AB 1844, California will become the first state to enact across the board social media privacy legislation.
AB 1844 is a huge win for the business community because it may provide California businesses with a legal liability shield from plaintiffs who may allege that businesses have a legal duty to monitor their employees' personal password protected digital content. This legislation may collectively save California businesses tens of millions of dollars a year in costs to monitor their employees' personal digital accounts. In addition, this law may save California businesses tens of millions of dollars per year on cyber liability insurance premiums that would accompany a duty to monitor employees in the digital/social media space.
With access comes responsibility. Since California businesses will not have access to their employees' personal digital content they will not become responsible for their employees' personal social media behavior. Employers do not have a duty to monitor their employees' activities outside of work in the real world so employers should not create a duty to monitor their employees' non-corporate digital activities.
This legislation is also a major victory for employees and job applicants. California employers may no longer ask employees or job applicants to provide access to their personal digital or social media accounts. For example, during a job interview an employer may not request an applicant log into their personal Facebook account or to "Facebook Friend" a hiring manager. In addition, an employer may not require an employee provide access to their personal password protected digital accounts. Job applicants and employees must understand that they should still be careful about the content they post online, utilize the proper privacy settings, and carefully screen who they "Friend" online.
(Full Disclosure: I advised California Assembly Member Campos' office on this legislation.)
Earlier this year, Maryland and Illinois enacted social media privacy legislation that may protect employers from social media related lawsuits while also protecting the personal privacy of employees and job applicants. Last month, Delaware enacted social media privacy legislation that may protect schools against social media related lawsuits while also protecting the personal privacy of students and student applicants. However, California is the first state to pass comprehensive legislation that protects employers/employees/job applicants and schools/students/student applicants. If Governor Brown signs both SB 1349 and AB 1844, California will become the first state to enact across the board social media privacy legislation.
AB 1844 is a huge win for the business community because it may provide California businesses with a legal liability shield from plaintiffs who may allege that businesses have a legal duty to monitor their employees' personal password protected digital content. This legislation may collectively save California businesses tens of millions of dollars a year in costs to monitor their employees' personal digital accounts. In addition, this law may save California businesses tens of millions of dollars per year on cyber liability insurance premiums that would accompany a duty to monitor employees in the digital/social media space.
With access comes responsibility. Since California businesses will not have access to their employees' personal digital content they will not become responsible for their employees' personal social media behavior. Employers do not have a duty to monitor their employees' activities outside of work in the real world so employers should not create a duty to monitor their employees' non-corporate digital activities.
This legislation is also a major victory for employees and job applicants. California employers may no longer ask employees or job applicants to provide access to their personal digital or social media accounts. For example, during a job interview an employer may not request an applicant log into their personal Facebook account or to "Facebook Friend" a hiring manager. In addition, an employer may not require an employee provide access to their personal password protected digital accounts. Job applicants and employees must understand that they should still be careful about the content they post online, utilize the proper privacy settings, and carefully screen who they "Friend" online.
(Full Disclosure: I advised California Assembly Member Campos' office on this legislation.)
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.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC All rights reserved.
Tuesday, August 28, 2012
Does Prince Harry have a claim for invasion of privacy?
Some naked photos of the United Kingdom's Prince Harry have been leaked online. There are rumors that there is also video of Prince Harry in the buff quietly being shopped to the highest bidder. These photos and the video were allegedly taken in the privacy of Prince Harry's private hotel suite in Las Vegas, Nevada.
In Montesan v. Donrey Media Group, 668 P.2d 1081 (1983), Nevada reiterated that it has impliedly recognized an action for invasion of privacy. According to the Second Restatement of Torts, § 652D (1977), in order to maintain a cause of action for invasion of privacy it must be proven that a public disclosure of private facts has occurred which would be offensive and objectionble to a person of ordinary sensibilities.
Does Prince Harry have an expectation of privacy in his private hotel room? Did Prince Harry give up his right to privacy when he invited others into his personal hotel suite? Could the person(s) who are allegedly shopping these photos and/or videos be charged with state and/or federal crimes? Does Prince Harry have a civil cause of action against the person(s) who shot the video?
In the criminal case against Dharun Ravi for webcasting a sexual encounter that his roommate had with another person in the privacy of their shared Rutgers University dorm room Ravi was found guilty of invasion of privacy. Since people generally have an expectation of privacy in their dorm rooms and own homes should they also have an expectation of privacy in their hotel suites?
How far should this right extend in the Social Media Age?
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.
Does Prince Harry have an expectation of privacy in his private hotel room? Did Prince Harry give up his right to privacy when he invited others into his personal hotel suite? Could the person(s) who are allegedly shopping these photos and/or videos be charged with state and/or federal crimes? Does Prince Harry have a civil cause of action against the person(s) who shot the video?
In the criminal case against Dharun Ravi for webcasting a sexual encounter that his roommate had with another person in the privacy of their shared Rutgers University dorm room Ravi was found guilty of invasion of privacy. Since people generally have an expectation of privacy in their dorm rooms and own homes should they also have an expectation of privacy in their hotel suites?
How far should this right extend in the Social Media Age?
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.
Friday, August 24, 2012
South Korea bans social media account registration
South Korea's highest court unanimously ruled that South Koreans are not required to register their user names or other online account information in order to make comments on the Internet. This reaffirms that South Korea will protect freedom of speech on social media and other online platforms.
When applying this law to universities in South Korea, it appears to mean that public school students are not required provide their schools their social media user names or other digital account information. In a democratic society, public schools may not require their students to register their Facebook accounts, Twitter handles, and/or other social media credentials in order to obtain or keep their scholarships. It is clearly unconstitutional for a U.S. public university to demand that their students register their digital or social media usernames or online persona with a university or a third party in order to keep their scholarship or participate in extracurricular activities. This protection extends to all students including student-athletes and other students on scholarship.
Unfortunately, there are multiple U.S. public colleges and universities that are following the advice of self-described social media consultants who are pitching schools on requiring their student-athletes to register their social media usernames with their schools and/or Facebook Friend a coach and/or download social media monitoring software so the school may identify the student's online persona and track their online behavior.
Any social media consultant that advocates schools utilize a social media monitoring service to track their student-athletes' online behavior is a snake oil salesman that should not be trusted because this advice may create tremendous legal liability for those universities and individuals who follow this advice.
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.
When applying this law to universities in South Korea, it appears to mean that public school students are not required provide their schools their social media user names or other digital account information. In a democratic society, public schools may not require their students to register their Facebook accounts, Twitter handles, and/or other social media credentials in order to obtain or keep their scholarships. It is clearly unconstitutional for a U.S. public university to demand that their students register their digital or social media usernames or online persona with a university or a third party in order to keep their scholarship or participate in extracurricular activities. This protection extends to all students including student-athletes and other students on scholarship.
Unfortunately, there are multiple U.S. public colleges and universities that are following the advice of self-described social media consultants who are pitching schools on requiring their student-athletes to register their social media usernames with their schools and/or Facebook Friend a coach and/or download social media monitoring software so the school may identify the student's online persona and track their online behavior.
Any social media consultant that advocates schools utilize a social media monitoring service to track their student-athletes' online behavior is a snake oil salesman that should not be trusted because this advice may create tremendous legal liability for those universities and individuals who follow this advice.
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.
Gay Federal Employee Allegedly Fired For Facebook Like Sues
A former federal employee has filed a lawsuit alleging that he was fired because of a Facebook Like. This is reminiscent of another recent lawsuit where an employee alleges he was fired for Facebook Liking the page of his supervisor's political opponent.
If employers have access to their employee's social media accounts and they learn about an employee's protected status and they fire an employee based upon this information this may open the employer up to tremendous legal liability.
In schools, requiring student-athletes to provide access to their social media accounts may also open up schools to discrimination claims. What would happen if a coach finds out one of his student-athletes is gay because of a Facebook Like or the content posted by one of the student-athlete's Facebook Friends and then the coach discriminates against the student-athlete?
The above mentioned examples demonstrate why employers and schools should not want to be able to freely access their employees' or students' social media content. If employers and schools are unable to access this information this may lower the number of discrimination allegations and/or lawsuits. Unfortunately, there are still employers and schools that don't understand these issues and because of this lack of understanding state and federal digital media privacy laws are needed to protect employers, employees, job applicants, schools, students, and student applicants.
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 employers have access to their employee's social media accounts and they learn about an employee's protected status and they fire an employee based upon this information this may open the employer up to tremendous legal liability.
In schools, requiring student-athletes to provide access to their social media accounts may also open up schools to discrimination claims. What would happen if a coach finds out one of his student-athletes is gay because of a Facebook Like or the content posted by one of the student-athlete's Facebook Friends and then the coach discriminates against the student-athlete?
The above mentioned examples demonstrate why employers and schools should not want to be able to freely access their employees' or students' social media content. If employers and schools are unable to access this information this may lower the number of discrimination allegations and/or lawsuits. Unfortunately, there are still employers and schools that don't understand these issues and because of this lack of understanding state and federal digital media privacy laws are needed to protect employers, employees, job applicants, schools, students, and student applicants.
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, August 21, 2012
California passes student social media privacy legislation
California has passed Senate Bill 1349. The bill is a win for California schools, taxpayers, students, and prospective students. If Governor Brown signs the bill it may help increase enrollment in California schools because it signals to the entire world that California is a leader in digital privacy and common sense technology law.
The legislation does not appear to have any implementation costs for California and may save California schools and taxpayers millions of dollars per year. According to the New York Times, it may cost approximately $10,000 per year to social media monitor a small segment of a school's student population. There appears to be more than 150 4-year post secondary academic institutions based in California. Therefore, if you multiply 150 x $10,000 this may save California 4-year post secondary schools at least $1.5 million dollars per year. This does not factor in some of the potential savings from not needing increased cyber liability insurance policies, legal fees to review the social media monitoring contracts between the schools and monitoring companies, and the cost to defend against negligent social media monitoring lawsuits or the failure to social media monitor lawsuits. Overall, the cost savings to California post secondary schools and taxpayers may exceed $5 million per year.
Any company that approaches NCAA sanctioned schools to sell social media monitoring services is selling a legal liability time bomb. Yesterday, there was a very troubling Louisville Courier-Journal report that stated that the University of Kentucky via a company called Centrix Social was social media monitoring some of its students and flagging them for using the term "Arab" or "Muslim" online. Centrix Social was recently acquired by Varsity Monitor who according to Deadspin.com appears to have some ethical challenges.
If SB 1349 is enacted, it may protect California schools from millions of dollars in additional compliance and regulatory costs, and millions of dollars in potential legal liability costs associated with social media related lawsuits.
(Full Disclosure: I advised California Sen. Yee's office on this legislation.)
The legislation does not appear to have any implementation costs for California and may save California schools and taxpayers millions of dollars per year. According to the New York Times, it may cost approximately $10,000 per year to social media monitor a small segment of a school's student population. There appears to be more than 150 4-year post secondary academic institutions based in California. Therefore, if you multiply 150 x $10,000 this may save California 4-year post secondary schools at least $1.5 million dollars per year. This does not factor in some of the potential savings from not needing increased cyber liability insurance policies, legal fees to review the social media monitoring contracts between the schools and monitoring companies, and the cost to defend against negligent social media monitoring lawsuits or the failure to social media monitor lawsuits. Overall, the cost savings to California post secondary schools and taxpayers may exceed $5 million per year.
Any company that approaches NCAA sanctioned schools to sell social media monitoring services is selling a legal liability time bomb. Yesterday, there was a very troubling Louisville Courier-Journal report that stated that the University of Kentucky via a company called Centrix Social was social media monitoring some of its students and flagging them for using the term "Arab" or "Muslim" online. Centrix Social was recently acquired by Varsity Monitor who according to Deadspin.com appears to have some ethical challenges.
If SB 1349 is enacted, it may protect California schools from millions of dollars in additional compliance and regulatory costs, and millions of dollars in potential legal liability costs associated with social media related lawsuits.
(Full Disclosure: I advised California Sen. Yee's office on this legislation.)
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.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC All rights reserved.
Friday, August 17, 2012
Will the International Olympic Committee strip Michael Phelps of his gold medals because of leaked Louis Vuitton photos?
On June 28, 2011, I was one of the first to analyze the new International Olympic Committee's social media regulations. When the regulations initially were released, I immediately noticed that there may some major challenges with the policies. At that time I stated, "In general, the IOC's Social Media Policy appears to be a good starting point for discussion. However, the points I mention above need to be addressed before the Games begin to lessen the likeliehood that social media compliance misunderstandings may occur."
During a conversation I had with ReadWriteWeb that was published on June 26, 2012, I stated that the "IOC’s social media policy is, at best, a work in progress, and that both official Olympic sponsors and the IOC will likely learn some hard lessons as the 2012 games progress." For example, under the IOC's Rule 40 (their social media regulations) Michael Phelps could be stripped of all of his medals because during the Olympics some photographs were leaked online of him that also contained Louis Vuitton merchandise and Louis Vuitton was not an official Olympic sponsor.
I highly doubt that Michael Phelps will be stripped of his 2012 Olympic medals because the negative press would create a huge black mark on a highly successful Olympic Games. However, as our world becomes more digitized the IOC must prepare for the possibility that similar situations may occur in the future and adjust their social media regulations accordingly before the 2014 Winter Olympics.
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.
During a conversation I had with ReadWriteWeb that was published on June 26, 2012, I stated that the "IOC’s social media policy is, at best, a work in progress, and that both official Olympic sponsors and the IOC will likely learn some hard lessons as the 2012 games progress." For example, under the IOC's Rule 40 (their social media regulations) Michael Phelps could be stripped of all of his medals because during the Olympics some photographs were leaked online of him that also contained Louis Vuitton merchandise and Louis Vuitton was not an official Olympic sponsor.
I highly doubt that Michael Phelps will be stripped of his 2012 Olympic medals because the negative press would create a huge black mark on a highly successful Olympic Games. However, as our world becomes more digitized the IOC must prepare for the possibility that similar situations may occur in the future and adjust their social media regulations accordingly before the 2014 Winter Olympics.
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.
Has Facebook created a legal duty to monitor for illegal activity?
Does Facebook have a legal duty to monitor for illegal activity on its website? Facebook is an international company with its headquarters in California. However, Facebook must comply with the laws of every jurisdiction where it operates.
In Australia, Facebook was recently pressured to remove a page that was alleged racist. At first, it appeared that Facebook claimed that because it is based in California it did not have to comply with Australia's anti-discrimination laws. However, after more public and governmental pressure Facebook eventually removed the controversial page.
A series of Facebook chats in Canada recently caught the attention of Facebook's staff who reported it to Winnipeg law enforcement officials. Detectives arrested a suspect and he is now facing charges of sexual assault, sexual interference, and luring. It may have been noble of Facebook to report an alleged criminal act but what would have happened if Facebook knew about the chats but didn't report them?
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.
In Australia, Facebook was recently pressured to remove a page that was alleged racist. At first, it appeared that Facebook claimed that because it is based in California it did not have to comply with Australia's anti-discrimination laws. However, after more public and governmental pressure Facebook eventually removed the controversial page.
A series of Facebook chats in Canada recently caught the attention of Facebook's staff who reported it to Winnipeg law enforcement officials. Detectives arrested a suspect and he is now facing charges of sexual assault, sexual interference, and luring. It may have been noble of Facebook to report an alleged criminal act but what would have happened if Facebook knew about the chats but didn't report them?
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.
Wednesday, August 8, 2012
Liking a Facebook Page May Be Constitutionally Protected Free Speech
Social Media has become a major free speech battleground around the world. For example, earlier this year Pakistan banned Twitter for a period of time because Twitter refused to delete tweets that were alleged to be blasphemy.
In the United States, some employers are demanding their employees turn over their Facebook usernames and passwords. In addition, an alarming number of colleges and universities are demanding students register their social media user names with their schools in a move that mimics China's Microblog Identification Program. Some colleges are even requiring students to download tracking software onto personal digital or social media accounts in order to keep their scholarships.
These practices are extremely disturbing and should not be allowed in the United States unless we want our society to turn into George Orwell's 1984. As I have stated on the record numerous times, I believe the above mentioned practices may violate the 1st amendment along with the 4th, and potentially the 5th, and/or the 14th amendments.
In a recent case, a Virginia man, Daniel Ray Carter, “Liked” the “Jim Adams for Hampton Sheriff” Facebook page in 2009. The incumbent sheriff learned of his subordinate’s (Mr. Carter's) “Like” for his opponent and fired Carter shortly after he won re-election. Mr. Carter sued, and earlier this year lost in U.S. District when the judge ruled that "Facebook ‘Likes’ aren’t enough speech to warrant constitutional protection."
The case has been appealed to the United States Court of Appeals for the Fourth Circuit (my jurisdiction) and Facebook and the ACLU are defending Facebook Likes as constitutionally protected free speech. The Fourth Circuit may decide whether a Facebook Like should be considered in the same light as an armband or other forms of expression that may indicate a political opinion.
The bottom line is that social media and other new technologies present unique legal, business, cultural, and political challenges. Therefore, it is imperative to have the proper social media policies in place and to train your staff, employees, and students so they understand the legal issues involved with social media.
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.
In the United States, some employers are demanding their employees turn over their Facebook usernames and passwords. In addition, an alarming number of colleges and universities are demanding students register their social media user names with their schools in a move that mimics China's Microblog Identification Program. Some colleges are even requiring students to download tracking software onto personal digital or social media accounts in order to keep their scholarships.
These practices are extremely disturbing and should not be allowed in the United States unless we want our society to turn into George Orwell's 1984. As I have stated on the record numerous times, I believe the above mentioned practices may violate the 1st amendment along with the 4th, and potentially the 5th, and/or the 14th amendments.
In a recent case, a Virginia man, Daniel Ray Carter, “Liked” the “Jim Adams for Hampton Sheriff” Facebook page in 2009. The incumbent sheriff learned of his subordinate’s (Mr. Carter's) “Like” for his opponent and fired Carter shortly after he won re-election. Mr. Carter sued, and earlier this year lost in U.S. District when the judge ruled that "Facebook ‘Likes’ aren’t enough speech to warrant constitutional protection."
The case has been appealed to the United States Court of Appeals for the Fourth Circuit (my jurisdiction) and Facebook and the ACLU are defending Facebook Likes as constitutionally protected free speech. The Fourth Circuit may decide whether a Facebook Like should be considered in the same light as an armband or other forms of expression that may indicate a political opinion.
The bottom line is that social media and other new technologies present unique legal, business, cultural, and political challenges. Therefore, it is imperative to have the proper social media policies in place and to train your staff, employees, and students so they understand the legal issues involved with social media.
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.
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