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5 Ways to Keep Social Media From Being a Legal Headache
During the past 10 years, privacy, freedom of speech and technology issues has become highly interconnected in society. With the proliferation of smartphones and digital platforms, students and school personnel are communicating more than ever via electronic mediums. Social media platforms and apps have become extremely popular with students and with the general population. This change has required the K-12 community to better understand the ramifications of these new technologies.
What may be a popular digital platform or app today may be out of vogue tomorrow. Friendster and MySpace gave way to Facebook and Twitter. With the proliferation of mobile apps, Instagram, Snapchat, WhatsApp, Kik, YikYak, Whisper and Secret have caught the attention of K-12 students during the past couple of years.
The popularity of a new platform may spread through a school or district overnight. So it may be difficult for administrators to keep up with the latest social media app, but it is imperative for educators to understand a number of legal issues that apply to social media in general.
Social Media Guidelines and Policies
Most states don’t require their school districts to create social media guidelines. However, some states, such as New Jersey, require their schools to draft and implement policies that adhere to certain principles. There is no one-size-fits-all social media policy for students, teachers and school administrators. State law and community standards differ around the country, so what may be acceptable in one jurisdiction may not work in another.
If your district decides to draft a social media policy, leaders should discuss the plan with the proper stakeholders to avoid a major backlash when the new policies are implemented. For example, New York City Schools drafted staff guidelines, a teacher guide to student social media usage and student guidelines — and its efforts did not attract an outpouring of legal threats.
By contrast, California’s Lodi Unified School District provides a textbook example of how not to draft and implement a social media policy. Its initial policy clearly violated the First Amendment rights of students who participated in extracurricular activities, and only after legal threats and national media attention was the ill-conceived policy revised.
While the social media policy for baseball players at Lamar High School (TX) has not received the same negative media attention as Lodi’s, its tenets are just as egregious. For example, it requires student-athletes to follow @lamarbaseball on Twitter and Instagram and allow Lamar Baseball to follow students back. It requires student-athletes to “Like” Lamar Baseball on Facebook and remove a post from a personal account if requested. These requirements clearly violate the First and Fourth Amendment rights of students and may create tremendous legal liability for the school district.
While different communities may have different philosophies on acceptable social media usage, school districts must remember not to implement an overly restrictive policy that creates unintended legal liabilities.
Accessing Student and Staff Personal Social Media Accounts
In general, when a school has a reasonable suspicion that a student has broken the law or school rules, it has the right to search a student’s personal belongings on school grounds. Unfortunately, there is no clear definition of what constitutes “reasonable suspicion,” so school officials should tread carefully before searching a student’s personal digital devices and social media accounts.
Requesting access to students’ personal digital devices or social media accounts may be very costly to schools. In 2010, a Pennsylvania school district paid $33,000 to settle a case in which a high school student’s cell phone was confiscated and unconstitutionally searched. A Minnesota school district paid $70,000 in 2014 to settle a federal lawsuit in which the school district threatened a sixth grade student until she gave her school access to her personal e-mail and social media accounts.
These incidents and others have inspired more than 20 states to enact laws that regulate when an employer or school may request access to the personal digital accounts of students, staff and applicants. Violating a state social media privacy statute and/or related federal laws may create unforeseen legal costs.
Social Media Monitoring of Students and Employees
Should a school district hire a social media monitoring company to keep tabs on its students and/or employees? In 2012, I told The New York Times that social media monitoring companies are selling [schools] snake oil that contains a major legal liability time bomb, and I still stand by that statement. Subsequently, Time magazine caught one social media monitoring company using the personal digital images of the students it was monitoring for advertising purposes, and Deadspin found another social media monitoring company making intentional misrepresentations about its business.
California’s Glendale School District is spending $40,000 per year on a social media monitoring company to scan the publicly accessible social media posts that are posted from school property and Huntsville City Schools (AL) paid more than $100,000 to a security firm that is monitoring students on social media. According to AL.com, Huntsville’s student social media surveillance has led to 14 students being expelled — 12 of whom were African-American. These figures have led one elected official to claim that its district’s social media monitoring system may be unfairly targeting black children.
School districts that hire monitoring services to track their students on social media may also be monitoring their teachers and staff. While different services may deploy slightly different technologies, the only way for a school to know if a particular Tweet or online post actually belongs to student or teacher is to authenticate it. Depending upon the circumstances, account authentication may create massive legal liability for school districts.
The proliferation of monitoring services recently led California to enact a law (AB 1442) that regulates social media monitoring of students. The law is intended to help protect the privacy of students by requiring community notification of a monitoring program and deletion of the collected data after a certain period of time.
Schools do not currently have the legal duty to monitor the personal digital accounts and activities of their students and staff. Engaging social media monitoring companies may signal to the judicial system that a school district is willing to be held legally responsible for the personal digital content posted by their students and staff. School districts must realize that with access and knowledge comes legal and financial responsibility.
Cyberbullying and Social Media Impersonation
Cyberbullying and online impersonation is a growing problem, and courts are responding to it. In 2008, an appeals court dismissed a defamation claim against a couple of students who had created a disparaging fake MySpace account on behalf of a vice-principal. Since then, multiple states have enacted laws that target cyberbullying or harassment, while others have tried to tackle online impersonation.
If school districts believe that their staff or students have violated any of these statutes, they should turn the matter over to law enforcement. There are significant First Amendment issues to balance when dealing with online threats, and the Supreme Court is in the process of deciding a case regarding freedom of speech on social media.
Privacy Policies, Data Use Policies and Terms of Service
School districts should review and fully understand the policies that govern each digital platform that their educators use in the classroom. When social media platforms offer their services for free it generally means that its users are not customers, they are the product being sold. For example, Facebook has partnered with multiple data brokers, and all school and student data posted there may be repurposed in a manner that may be inconsistent with the educational mission of an academic institution.
In conclusion, social media, apps and new digital technologies create exciting learning opportunities, but they also create possible legal issues. To help protect against incurring preventable legal liability, school districts should work with their legal counsel to proactively educate students, teachers and administrators about the issues inherent in social media.
Bradley Shear is a Maryland-based lawyer who counsels educational institutions about technology law and policies. He blogs at “Shear on Social Media Law.”