February 2015 Podcast: One man crusades for students’ social media rights nationwide

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By Student Press Law Center

Attorney Bradley Shear discusses how his work could help make Maryland the 13th state with a law protecting the social media privacy rights of students in colleges and high schools.

Frank LoMonte: The nightmare phone call for students used to be to come to the principal’s office and empty his pockets or dump out her purse or maybe unzip his backpack. But in the 21st century that nightmare phone call can now include ‘log into your social media accounts so that your private messages can be read.’

This is the Student Press Law Center’s monthly podcast, and we’re here to talk about the subject of state laws protecting the social media privacy of students in colleges and high schools. I’m Frank LoMonte, director of the Student Press Law Center. More information about the privacy and First Amendment rights of students is available on the SPLC’s website splc.org. Thanks for joining us for another monthly edition of the SPLC podcast, where we talk about legal developments affecting people working in the student media.

As we’re talking here in February of 2015, Maryland is discussing becoming the 13th state in the country enacting a state statute protecting the privacy of students when they use social media. We’re joined by attorney Bradley Shear. Brad is based in Bethesda, Md., a suburb of Washington, D.C. He is an authority on sports law, entertainment law and privacy law, all of those things converging in his interest in social media law. He has become the go-to expert on state laws involving employee and student social media privacy. He blogs about those and other topics at shearsocialmedia.com. He is a graduate of George Washington University and of the University of Baltimore’s School of Law, and we’re really pleased to have his expertise with us today on the podcast.

So Brad, thanks for joining us, and with that I’m just really interested in, first, you explaining how you got involved in this subject of social media privacy, where your interest comes from and what you’ve been doing to kind of help put it on the legislative map.

Bradley Shear: Hey Frank, thanks for having me. I appreciate being on your program this morning. Well, it’s something that, I’ve been dealing with privacy and digital issues, I guess, since the late ’90s when I started the NFL Player’s Association. And as far as this specific issue is concerned about either students or employees being asked or required to turn over their usernames and passwords, or provide access by logging into an account, that really started, at least from what I’ve seen, 2008, 2009.

Obviously a couple years before there was a bunch of different reports about different students and, specifically on athletic teams, that were punished because of their digital behavior. But it really wasn’t until about 2009 when I started getting some inquiries from, whether it was clients, or whether it was students or employees, that said ‘hey, I have a problem. I don’t know if you know about it,’ and I would go ‘hey, what’s going on?’ and it would be like ‘well, my employer or school wants access to my personal social media accounts.’

At first I thought it was a little insane and I thought it was absolutely crazy that this was happening. I wasn’t in a position that I thought ‘wait a minute, this is something that I would imagine happening,’ but it was something where I thought, ‘you know what, what can we do to stop it?’ Obviously there is a handful of legal cases across the country that discuss these issues, but at the beginning there was a couple of cases that really focused on more along the lines of email access. There wasn’t like some strong case law that said ‘you can’t do this,’ or ‘you shouldn’t do this,’ it was just a couple of cases and there really wasn’t much to go on.

When I have clients say ‘hey, can we access this?’ and my response is ‘well, it’s not a really good idea for a whole bunch of reasons. There is liability issues, there is privacy issues,’ and the big problem with the schools was that, in the beginning, it was really just focused on the athletic departments. You had a handful of companies that were going after athletic departments and saying ‘hey, we have a great idea. We’re going to come in and you’re going to require all of your student athletes to register their social media usernames with this application or this monitoring service, and in some cases you’ll need to require them to turn over their passwords. In other cases they’ll just need to tell us the account name and we’ll do all the rest,’ and that’s a very big problem in so many regards.

You have First Amendment issues, you have Fourth Amendment issues potentially for these issues, you have potential other federal and state law implications, and also there is potential FERPA issues involved, so there are so many potential issues there. And when I heard about this and I had some clients say ‘you know, this is something that we want to do,’ and my response would be ‘no.’

And then when I had some people say ‘I’m required to provide access,’ and I would say ‘well, what was the actual ask?’ And the ask was, it wasn’t an ask. It was a demand. ‘You turn this stuff over or you’re going to be kicked off the team.’ So then I started talking to other lawyers, very few lawyers really understood the issue at that time and just so happened speak with members of the media who I knew and lawmakers and there was a lawmaker out in Frederick, Md., not very far, probably about an hour from where my office is, and he said, ‘you know what, Brad, this is a problem. Let’s stop it.’ That was State Sen. Ronald Young of Frederick, and he was the first lawmaker in the country to introduce legislation to protect both students and employees.

LoMonte: Right, and we should mention that the employee privacy bills have been a somewhat easier lift for legislatures and many, many states now have these bills. They typically work about the same way, that there is a prohibition on an employer requiring either to hand over your password or to log into your social media and show it to them so they can read the non-public portions of your social media, either as a job applicant, a job seeker, or as a condition for keeping your employment. We should also mention that in none of these legislative proposals, neither pertaining to employees nor pertaining to students, is there any prohibition at looking at the public portions of social media, so even the broadest social media privacy bill does nothing to prevent a school or college from disciplining a student who uses social media in an ill-advised way publicly and puts on something like, let’s say an athlete partying with sports agents or drinking underage or otherwise engaging in some kind of punishable behavior of which the social media is evidence.

Shear: Exactly, so the legislation in general is very well balanced. What they do is they basically protect the personal privacy and safety of students and employees, and also they are very positive for employers and schools because it provides a legal liability shield for these entities to say hey, you know what, they don’t have the legal obligation or duty to monitor what their students or their employees are doing online because at the end of the day, obviously you have the privacy issues, but from a legal and compliance perspective, employers and schools don’t have the legal obligation to follow their employees and students on their own time when they are off the work site or they are off campus, so there is no reason why there should be a new legal duty to follow what their employees or students are doing in additional space. It’s just a crazy thought that just boggles my mind when I hear that people actually think that employers and schools should be actively monitoring every little thing their students or employees or applicants are doing off company or off school time.

LoMonte: You mentioned, it’s really important for two reasons, that schools and colleges have this kind of protection agains, essentially, their own overreaching. The first is that, kind of like what Colin Powell is said to have told George Bush when they were invading Iraq, that when you break it you buy it. When you take on the responsibility to monitor someone’s social media, then you’re assuming responsibility for doing that carefully, and if you should fall short in that monitoring, if you should let something slip by negligently, you’ve now opened yourself up to liability that you never had to assume in the first place.

But the second reason, and you alluded to this in the realm of employers, there are all sorts of things on peoples’ social media pages that a person in authority is probably better off not knowing. As a person of authority, I’m really not that interested in knowing what my employees’ religious beliefs are or what their political beliefs are, and if I find those things out I can’t unsee them, and it actually opens up schools to all sorts of potential for discrimination or bias or retaliation if they start becoming privy to these things that would be disclosed on a social media profile.

Shear: Those are some great points, Frank, and that’s something that, I think the mantra with access comes responsibility is something all schools should really, I think, bone up on really understand that once you have access, you can’t disown the access and once you’ve been made aware of those things, you can’t basically unring the bell.

I think a good example is what happened with Penn State with regards to the Sandusky matter. There were allegedly emails that said ‘hey look, there is some issues with Jerry Sandusky and we need to resolve it,’ and there were emails from over 10 years before. That’s what I think helped prosecutors and helped those who were investigating the matter say ‘you know what, the school knew or should have known, and we have the digital evidence.’

So that’s why I think that those schools that are monitoring everything that their students are doing fully understand the issue, and I think, that’s why I believe it’s my civic duty and the civic duty others that really understand this issue to try to educate those that don’t, because the last thing I’d want to see is there being all these lawsuits out there saying ‘you know what, you should have known. You should have actively monitored everything that your students and employees were doing.

Well at the end of the day there is only so many resources that our schools and employers have, and I don’t think this is the best deployment of those resources, and when you combine that with the First and the Fourth Amendment issues and the different privacy issues combined, I think it leads to a sound public policy not to have people snooping into these very personal digital homes.

LoMonte: Right, and you mentioned it was sort of athletes who put this on the public map. Many colleges, as well as professionals, now have standing policies in place where, either at the coach level, the team level or even at the league level, people are limited in what they’re allowed to do on social media. Or they have to friend a coach or friend a person in the athletic department hierarchy in order to give that person access to the non-public portions of social media, or sometimes even have to surrender the log-in information as a condition of remaining on the team. These really are constitutionally questionable policies that schools and colleges tend to justify them by claiming that they condition to receiving a privilege and they’ll always emphasize that term privilege on basically any condition at all because they don’t have to give you the privilege and you have no entitlement and you have no entitlement to privilege, but the Supreme Court has really rejected that distinction. The Supreme Court has really rejected the idea that a government agency can make a privilege, contingent on some broad waiver of your constitutional rights, and if schools are being advised that they are getting legal advice that is 40 or 50 years old.

I’m really curious about your experience because you’ve worked closer on this than anybody in the country. It is normally very, very hard to get adult policymakers in state legislatures to focus on issues of student rights, and we can speak from experience with that at the SPLC. And yet, this is something that, in a period of literally no more than three years, a dozen states have enacted these laws with really no well-funded student rights lobby out there, really no massive grassroots organization of students pushing for this. How has this caught fire in the way that it has? How do you think this issue has registered in the way that it has on the radar of so many legislatures across the country?

Shear: I think the thing was that, in the beginning, it was very tough to really get the message out there. I worked with states around the country, and also with Congress on the Social Networking Online Protection Act, which has been introduced several times. The issue is that, when you have policies that schools have put in place and then when you have the media that is very interested in this and the media finds out about some of these very egregious practices, and then they write articles about them, and then when there are organizations such as yours, the Student Press Law Center, it amplifies the message saying ‘hey look, this is not just a student athlete issue, this is also a journalism issue.’ Like, for example, I believe it was, if I’m not mistaken, was it, out in California, Lodi School District? I think that was a really good example of when a group of people, it wasn’t just the student athletes, and that was, I believe, a high school where they wanted to have this really restrictive policy that would focus not just on the student athletes but the journalism students and on anyone dealing with extracurricular activities.

I forget the old saying, but it goes something like first they went for one group and nobody said anything, and then they went for another group and then all of a sudden you’re the last person standing. Here, I think the issue is that you want to stand up for privacy rights and free speech rights as soon as you see there being a problem. If you don’t, those rights will be taken away, and in this day and age, the so-called promise of social media was to amplify people’s messages and make everyone ‘oh, it’s all about sharing and caring’ and all the other cool little things that some people out in Silicon Valley like to say. Well they didn’t think about the problems that go along with that is that you’re going to have, once you start sharing and collaborating and putting your voice out there, there’s winds against that and will say ‘you know what, we need to quash those voices and what you say we’re going to utilize against you.’

That’s something that certain people have tried to avoid. That very troubling conversation is that once you open your mouth, you might then have some other type of legal issues involved with that, so that is why I felt like, you know what, this is such a huge First Amendment issue and Fourth Amendment issue, that I literally said ‘I need to make some waves and go out there and try to educate the public on this.’

It was very hard because, in general, the people this is happening to do no want to come forward. I’ll give you a perfect example. I had someone come forward to me and he told me what was going on and then they reached out to the media, and this was a Friday.

Their case went all around the world and then come Monday, they had some problems with their employer because they spoke out. That’s the problem with this. Those who speak out, when you become a whistleblower, then your face is tied to this one issue and you really can’t get away from it, so that’s why it’s been very tough to get more people to come forward, because those who have, I’ve seen first hand what could potentially happen.

So it’s something where, as a lawyer, I have the ability because I represent people who have had their privacy violated. I advise corporate clients on these issues and my goal is to try to educate them and say ‘hey look, this is not a good, sound policy both from an HR perspective to retain your employees and to attract student athletes to your schools, but also from a legal and compliance perspective. Once clients understand that, then they say ‘aha,’ and the lightbulb goes off, ‘maybe we should revisit this policy,’ or ‘maybe we should change this policy to not only better protect the personal privacy and safety of either our students or our employees, but also to protect against major potential legal liability on these matters.’

LoMonte: Well I’m so glad you mentioned that Lodi School District in California. That was one of the earliest examples brought to the attention of the SPLC, where students actually were, with some legal help, able to organize and overcome a really drastic and intrusive social media contract. That’s sort of a cautionary tale for everybody out there. When you’re given a contract, when you’re given an agreement and are told you must sign this as a condition of receiving some type of a benefit from your school or your public college or your university, you should always view that agreement with some degree of skepticism, and if you’re uncomfortable with what you’re being asked to sign away, then consult a lawyer. Call the Student Press Law Center or the ACLU or some other licensed attorney in your jurisdiction and see whether you’re being asked to give away too much. It sometimes turns out to be the case.

At the University of Oklahoma this past year, another example, the members of the marching band were being told to sign a social media contract as a condition for participating in the band, and it was essentially an non disparagement agreement, saying that you could not complain about the band or make any derogatory or negative comments about the band or anyone associated with it on social media as a condition for being allowed to continue participating.

David Boren, the president of the university, when he got wind of this contract, actually ordered the band director to rescind it so it is no longer in effect, but that just gives you a taste of the kinds of intrusive and overreaching policies that are out there among many schools and colleges, and it’s something that students and their families all have to be watchful and vigilant for.

Let me just ask you, since the people listening to this podcast often are themselves students or the people that work with students, let’s say I am in a state that doesn’t have one of these social media privacy laws. I’m in Florida, I’m in Texas, I’m in Georgia, and I’m interested in getting one started in my state legislature. With your experience in going around the country to places like Maryland and New Jersey and working with legislatures there, what can you share about that experience, what have you found to the be tactics and the arguments that are successful?

Shear: Well I think you first have to show that these egregious policies are occurring in your state, in your locality. You have to really, at least in my experience, you have to really demonstrate that something is happening to someone in your area, whether it’s a school policy, or whether it was a student, or whether it was an employee who was harmed in some manner or was told they need to provide access. You really need to show that this is happening in your area.

Once you’re able to do that, then maybe reach out to the media. Usually if you’re able to reach out to the media and they’re able to potentially either write a story or cover the issue, then you may be able to take that to a lawmaker. It’s not so simple to find a lawmaker. You have to find someone that is interested in privacy rights and understands technology and realizes that these types of practices must stop, because if they don’t stop then people are going to be afraid to utilize these really wonderful platforms.

In my experience, I don’t think that it’s a really good idea to really just put your foot off the gas pedal, because once you find out that this is happening, you have to say ‘you know what, we need to figure out a way to stop it.’

I’ll give you a perfect example in Maryland. Maryland was the first state to introduce legislation to protect both employees and students. The employer bill passed in 2012. The student bill still has not passed and it’s been several years that it’s been reintroduced, and my hope is that it gets passed this year and I’d like to thank Frank who came out to Annapolis to testify on behalf of it, but it’s something that if at first you don’t succeed, you have to keep trying and try again to make it happen.

Legislation is not going to pass over night. You need to build coalitions. You need to reach out to the ACLU, reach out to the Student Press Law Center, reach out to other potential organizations or public interest groups that may be interested in these issues, and really reach out to them and say ‘look, this is a problem and this is something that needs to be resolved.’

The schools that are educated and understand this issue realize that, you know what, this is a good idea to put in place because it really relieves the school from a tremendous amount of potential legal liability. So those schools that truly understand this issue and those government affairs people that work for the schools that might lobby for or against these types of bills, you need to reach out to those people. You need to, literally, talk to all the different stakeholders and try to get a consensus about ‘OK, well this is a problem. This is going on. Let’s figure out a way to try to stop it and create some type of win-win legislation that both protects the privacy of students, but also provides a legal liability shield for the schools.

Everyone needs to have something. Everyone needs to get something in return when you’re trying to get legislation enacted. You can’t just make something so one-sided that one side feels like they got everything that they wanted and the other side feels that ‘wait a minute, there’s nothing in it for me so therefore I’m going to lobby against the bill.’

So it really comes down to trying to get all the stakeholders involved to come up with something that is a win-win for everybody. Obviously you can’t always create a full win-win situation, but you want to try to get everyone involved and reach out to the stakeholders early in the process, because otherwise, the potential is, legislation could lag, and lag on for years and years. Like in Maryland, the reason why the legislation lagged on is because you had one lawmaker in the Maryland House of Delegates who refused to allow the bill out for a vote, and for whatever reason that was, I can’t speculate on the rationale publicly on what that reason was, but it just was not allowed out for a vote.

It passed unanimously, I believe it was twice, or close to unanimously in the Maryland Senate. It just got no traction in the House in that it wasn’t even allowed out to be voted, so you might have challenges like that.

My hope is that this is the year for it to pass and we’ll see. I think now student privacy has really exploded and the hope is that this is the year for it to pass in Maryland and hopefully it will be the year for it to pass in a lot of other states.

LoMonte: Right, well we’ll have to leave it there and wrap it up. I want to thank Brad Shear, who has been sort of a one-man crusade, putting the issue of students’ social media rights on the agenda for legislatures nationwide. I want to encourage everybody to take a look at Brad Shear’s blog shearsocialmedia.com and to contact him through his website at shearlaw.com if you’ve got a question about your legal rights as a student or an employer involving privacy and social media.

So Brad Shear, thanks so much for joining us on the podcast, and if you’re a student with any question at all about your First Amendment or your privacy rights, we encourage you to check out the resources on splc.org, to message us at splc@splc.org or to call our hotline, (202) 785-5450, with any question about your legal rights.

Thanks for listening, and we’ll talk to you next month.