Maryland Introduces Bills to Protect Students' Social Media Privacy Rights

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, Senate Bill 54, known as the “Facebook Law” (http://1.usa.gov/wXRvxs; see also, “Mo. Social Media Law Stirs Up Educators, Parents” CBS News, at http://bit.ly/oYyak5), and then repealed last year (see, “Missouri Repeals Law Banning Teacher-Student Facebook Friendship, Mashable, http://on.mash.to/nkkzvl).

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.

MD Bills Protect Privacy

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 Court recently hinted, in U.S. v. Jones, 565 U. S. ____ (2012), that students have an expectation of privacy in the Social Media Age and have free speech rights while utilizing social media (see, “Supreme Court Signals it Will Protect Students' Social Media Privacy Rights, Shear on Social Media, http://bit.ly/wvBEqf).

Both bills would ensure that colleges and universities do not create a legal duty to monitor all of their students' digital content (see, “Social Media Has Schools on Defense,” Business Insurance.com, http://bit.ly/ogKSqH).

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 V 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. (On Feb. 22, Huguely was convicted of second degree murder in the kiling of ex-girlfriend 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. (See, “Jury Selection Begins in Yeardley Love UVA Lacrosse Murder Case,” CBS News.com, http://bit.ly/un8366.)

Bill supporters say taxpayers, whose taxes go toward the state educational system, would benefit from the passage of this legislation because tax dollars could be utilized to educate children and not be wasted on creating easily avoidable legal liability. In addition, when a state school is sued for negligence, taxpayers may end up footing the bill (see, “Cost of Lawsuits to Taxpayers,” California Citizens Against Lawsuit Abuse, http://bit.ly/Abt0Ik.)

Commentary

With access comes responsibility. I do not believe that schools that require 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 its current legal mess, and multiple young boys may have been saved from harm.

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. (See, “Does the NCAA Understand the Legal Implications of Social Media Montoring?” http://bit.ly/kTRhQB, “Spying on NCAA Student-Athletes By Utilizing Social Media Monitoring Firms May Be
Unconstitutional,” http://bit.ly/ruxAoD, and “University of North Carolina's Student-Athlete Social Media Policy May Be Unconstitutional,” http://bit.ly/wm9Ku2.)

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 (see, “China Expands Program Requiring Real-Name Registration Online,” NYTimes.com, http://nyti.ms/AbmFOs). Schools that require their students to turn over 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. The U.S. 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 the 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 (see, “Supreme Court Signals It Will Protect Students' Social Media First Amendment Rights,” Shear on Social Media, http://bit.ly/xiicwE).

I encourage everyone to reach out to Maryland's legislators to voice support for these Bills, and to lobby other state legislatures to pass similar legislation. These bills are a win for students, schools and taxpayers.

(Note: I am not being paid for my work on this legislation. I believe that the First and Fourth 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.)

Bradley S. Shear is a lawyer in Bethesda, MD, and an Adjunct Professor of Sports Management at George Washington University. He practices cyber and social media law, copyright and trademark law, advertising and business law, and entertainment and sports law. Shear was the first private practice attorney in the U.S. to work with a state government to draft social media law. He can be reached at [email protected].

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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 (http://mlis.state.md.us/2012rs/billfile/sb0434.htm), and House Bill 310: Public and Non-Public Institutions of Higher Education ' Internet and Electronic Privacy Protection (http://mlis.state.md.us/2012rs/billfile/hb0310.htm).

According to the synopsis of Senate Bill 434 on the Maryland Legislature's website, it would:

[Prohibit] 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.

(A PDF of the Senate Bill is available at http://bit.ly/wh6Yfs.)

According to the synopsis of House Bill 310 on the Maryland Legislature's website, it would:

[Prohibit] 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.

(A PDF of the House Bill is available at http://bit.ly/w2alHD.)

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, Senate Bill 54, known as the “Facebook Law” (http://1.usa.gov/wXRvxs; see also, “Mo. Social Media Law Stirs Up Educators, Parents” CBS News, at http://bit.ly/oYyak5), and then repealed last year (see, “Missouri Repeals Law Banning Teacher-Student Facebook Friendship, Mashable, http://on.mash.to/nkkzvl).

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.

MD Bills Protect Privacy

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 Court recently hinted, in U.S. v. Jones, 565 U. S. ____ (2012), that students have an expectation of privacy in the Social Media Age and have free speech rights while utilizing social media (see, “Supreme Court Signals it Will Protect Students' Social Media Privacy Rights, Shear on Social Media, http://bit.ly/wvBEqf).

Both bills would ensure that colleges and universities do not create a legal duty to monitor all of their students' digital content (see, “Social Media Has Schools on Defense,” Business Insurance.com, http://bit.ly/ogKSqH).

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 V 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. (On Feb. 22, Huguely was convicted of second degree murder in the kiling of ex-girlfriend 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. (See, “Jury Selection Begins in Yeardley Love UVA Lacrosse Murder Case,” CBS News.com, http://bit.ly/un8366.)

Bill supporters say taxpayers, whose taxes go toward the state educational system, would benefit from the passage of this legislation because tax dollars could be utilized to educate children and not be wasted on creating easily avoidable legal liability. In addition, when a state school is sued for negligence, taxpayers may end up footing the bill (see, “Cost of Lawsuits to Taxpayers,” California Citizens Against Lawsuit Abuse, http://bit.ly/Abt0Ik.)

Commentary

With access comes responsibility. I do not believe that schools that require 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 its current legal mess, and multiple young boys may have been saved from harm.

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. (See, “Does the NCAA Understand the Legal Implications of Social Media Montoring?” http://bit.ly/kTRhQB, “Spying on NCAA Student-Athletes By Utilizing Social Media Monitoring Firms May Be
Unconstitutional,” http://bit.ly/ruxAoD, and “University of North Carolina's Student-Athlete Social Media Policy May Be Unconstitutional,” http://bit.ly/wm9Ku2.)

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 (see, “China Expands Program Requiring Real-Name Registration Online,” NYTimes.com, http://nyti.ms/AbmFOs). Schools that require their students to turn over 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. The U.S. 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 the 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 (see, “Supreme Court Signals It Will Protect Students' Social Media First Amendment Rights,” Shear on Social Media, http://bit.ly/xiicwE).

I encourage everyone to reach out to Maryland's legislators to voice support for these Bills, and to lobby other state legislatures to pass similar legislation. These bills are a win for students, schools and taxpayers.

(Note: I am not being paid for my work on this legislation. I believe that the First and Fourth 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.)

Bradley S. Shear is a lawyer in Bethesda, MD, and an Adjunct Professor of Sports Management at George Washington University. He practices cyber and social media law, copyright and trademark law, advertising and business law, and entertainment and sports law. Shear was the first private practice attorney in the U.S. to work with a state government to draft social media law. He can be reached at [email protected].

For Twitter, LinkedIn, Facebook and Google+ followers, click here to subscribe to Internet Law & Strategy at a special introductory rate of $269. This offer is valid for new subscribers only.