social media: legal pitfalls and best practices - sxswedu 2016
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Social Media: Legal Pitfalls and Best Practices
Presented by:
Diana Benner & Lena Engel
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Director of Professional Development
Texas Computer Education Association
diana.benner@gmail.com
@diben
DIANA BENNER
http://dbenner.org
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Attorney
Rogers Morris & Grover LLP
lengel@rmgllp.com
LENA L. ENGEL
http://www.rmgllp.com/
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What are some social media trends
in education today?
What are some strategies to best
implement social media in your district?
What are some legal pitfalls
related to social media?
Today...
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aSource: https://youtu.be/jottDMuLesU
The Social Media Revolution
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What do you think of when
you hear the word . . .
Social Media?
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Social media refers to online tools and services
which allow an exchange of ideas, information,
videos, pictures, and graphics — just about
anything you can name.
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Social Media is Everywhere...
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…and It’s Impact is Powerful (and scary)
• 88% of teens have seen someone be mean to another person on a social
networking site
• 41% of teens have had a negative experience as a result of using a social
networking site
• 39% of teens and tweens think their online activity is private from everyone,
including parents
• 67% of teenagers say they know how to hide what they’re doing online from
their parents
• Among 9-17 year olds, more time is spent on social networks than on TV
• For young users, Instagram is one of the most important social networks
Source: http://www.guardchild.com/social-media-statistics-2/
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• Bookmarking Sites and Social News Sites (Delicious, Digg)
• Blogs and Microblogs (Twitter, Tumblr)
• Social Networking Sites (Google+, Facebook)
• Shopping Sites (Amazon)
• Multimedia Sharing (YouTube, Flickr, Instragram)
• Virtual Worlds (Second Life)
Types of Social Media
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Organizations Individuals
Who’s on Social Media?
aSource: http://youtu.be/JJfw3xt4emY
Social Media Affecting Teens
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What
are you seeing
Discussion
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If no problems have arisen
in your district, consider
yourself lucky.
There’s a growing trend
of social media problems,
lawsuits, and media
frenzy.
Why This Matters
aSource: http://goo.gl/svOF7p
Teen Take Life After Months of Taunting
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• Compliance with Privacy Laws
• Compliance with CIPA
• Accessing Personal Devices and Accounts
• Responding to Off-Campus Use of Social
Media
Pitfalls at a Glance
Source: https://goo.gl/1RgbD6
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Federal and State LawFamily Educational Rights and Privacy Act (FERPA)
• Governs use and dissemination of student education records and personally identifiable information
Protection of Pupil Rights Amendment (PPRA)
• Provides parents certain rights regarding collection and use of student information for marketing purposes
• Requires notice and opt out
Children’s Online Privacy Protection Act (COPPA)
• Governs online collection of personal information from children under 13
• Requires parental consent and opt out
Texas Education Code Sec. 26.009
• District employee must obtain parental consent in writing before making or authorizing the making of a videotape of a
child or recording or authorizing the recording of a child's voice
Discussion: How might these apply in the social media context?
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Applies to . . .• District contracts with third party vendors
– When District provides information
– When student enters information directly into vendor’s system/platform/service
• District use of social media– District sites/feeds/accounts
– District-sponsored sites/feeds/accounts
• District officials’/employees’ personal use of socialmedia (anyone surprised?)
– On-campus
– AND Off-Campus
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Children’s Internet Protection Act
• Districts must certify compliance with CIPA when
applying for E-Rate funding
• Requires development and enforcement of an
Internet Safety Policy
• CIPA - https://goo.gl/6lSQbV
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CIPA Requirements• Monitoring the online activities of minors
• Implementing technology protection measures that protect against access
to visual depictions that are obscene, child pornography, or harmful to minors
• Educating minors about appropriate online behavior, including interacting with
other individuals on social networking websites and in chat rooms,
cyberbullying awareness, and response
Discussion: What specific actions might a District be required
to take regarding social media?
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CIPA Best Practices• Monitor (or restrict) student use of social media via District technology resources
– even personal use
• Filter (or block) social media content accessed through District technology
resources
• Encourage use of separate District/personal accounts
• Monitor and control use of District and District-sponsored accounts
• Include content on responsible digital citizenship in curriculum (including access
to social media for practice?)
• Train District officials and personnel on monitoring and proper use
• Inform parents about District-sponsored use of social media by students (and
account access credentials?)
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https://goo.gl/K9Kz2O
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http://goo.gl/IFH8fR
Eanes ISD Digital Parenting 101
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How does your district educate on
Discussion
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Discussion: Is it permissible to . . .
• Search a student’s cell phone?
• Ask a student for access credentials
for personal social media accounts?
• Ask an employee for access credentials for personal social
media accounts?
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Reasonable SuspicionGenerally: A District official must have reasonable suspicion that a
student has broken the law or school rules before it is permissible to
search a student’s personal belongings on school grounds
• No clear definition of “reasonable suspicion”
– Seek guidance from law enforcement and District
legal Counsel before searching a student’s personal
digital devices and social media accounts
– Scope of the search must be reasonably related to
the documentation that justified the search
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It Could Be Costly
• 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.
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Laws that Regulate
• Asking for passwords to social
media sites may be a violation of
the Stored Communications Act
• More than 20 states (http://goo.gl/4mWHaP) have introduced or
enacted laws that regulate when an employer or school district may
request access to the personal digital accounts of students or staff
(Texas doesn’t have one yet)
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Responding to Off-Campus Use by Staff
Special Considerations:
• The same rules for any other form of communication apply (i.e.,
Educator Code of Ethics)
• Constitutional constraints:
– Employee right to freedom of association
– Content-based restrictions regarding matters of public concerns
• Avoid prior restraints
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Responding to Off-Campus Use by Staff
Pickering v. Bd. of Educ., 391 U.S. 563 (1969)
1. Is the employee speaking pursuant to official duties?
– If so, likely no protection
– If not, go to Question 2
2. Is it a matter of public concern?
– If not, likely no protection
– If so, balance interests of the district as an employer and the employee as a
citizen (i.e., Constitutional rights)
aSource:: http://goo.gl/uHBGTF
Fired Over Tweet
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Responding to Off-Campus Use by Students
Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503 (1969)
Speech would “materially and substantially interfere with the
requirements of appropriate discipline in the operation of the
school”
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Responding to Off-Campus Use by Students
“Over 45 years ago, when Tinker was decided, the Internet,
cellphones, smartphones, and digital social media did not exist.
The advent of these technologies and their sweeping adoption by
students present new and evolving challenges for school
administrators, confounding previously delineated boundaries
of permissible regulations.”
- Bell v. Itawamba County Sch. Bd., 859 F.Supp.2d 834 (N.D. Miss. 2012), rev’d, 774
F.3d 280 (5th Cir. 2014), rev’d en banc, 799 F.3d 379 (5th Cir. 2015) (cert. denied).
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Responding to Off-Campus Use by Students
Factors for determining material and substantial disruption:
• The nature and content of the speech, the objective and subjective seriousness of
the speech, and the severity of the possible consequences should the speaker
take action
• The relationship of the speech to the school, the intent of the speaker to
disseminate, or keep private, the speech, and the nature, and severity, of the
school’s response in disciplining the student
• Whether the speaker expressly identified an educator or student by name or
reference, and past incidents arising out of similar speech
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Responding to Off-Campus Use by Students
Factors for determining material and substantial disruption (cont.):
• The manner in which the speech reached the school community
• The intent of the school in disciplining the student
• The occurrence of other in-school disturbances, including administrative
disturbances involving the speaker
- See The Other Tinker Test: Analyzing the Conflict between Student Free Speech Rights and a School’ Obligation to
Maintain a Safe and Secure Environment, Christopher B. Gilbert, UT School Law Conference, February 26, 2016 (citing
Bell, 799 F.3d at 398.
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Responding to Off-Campus Use by Students
• Tinker applies to off-campus student speech, even without the use of school
resources
• Material and substantial disruption may be actual or reasonably anticipated
• The speaker’s intent is relevant
– Intended to reach the school
– Intentionally directed at school community
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Online ImpersonationTexas Penal Code § 33.07(a): A person commits an offense if he uses the name or
persona of another person to:
Create a web page on a commercial social networking site or other internet
website; or
Post or send one or more messages on or through a commercial social
networking site or other internet website, other than on or through an electronic
mail program or message board program;
Without obtaining the other person’s consent; and
With the intent to harm, defraud, or intimidate, or threaten any person
◦ Penalty: 3rd degree felony
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Discussion
How do we approach
educating staff and students when . . .
ONE wrong social media post
can ruin their lives for good?
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aSource: http://youtu.be/JJfw3xt4emY
Digital Dirt
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What
does this video suggest?
Discussion
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Why Use Social Media?
It’s a part of their daily lives.
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Why Use Social Media?
It reaches a different audience than the school flyer crowd.
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Why Use Social Media?
It’s instant.
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Why Use Social Media?
Parents are
using it.
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Why Use Social Media?
To teach about digital citizenship
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Why Use Social Media?
To Reach a Global Community
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Edutopia has a nice 7-step
outline on how to develop
social media guide guidelines
appropriate for K-12.
Source: http://goo.gl/4Yn236
Social Media Guidelines http://goo.gl/4Yn236
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Social Media Policy
Database provides access
to policies from a wide
variety of organizations.
Social Media Policy Database
http://goo.gl/zUxw7i
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Teens need to be made
more aware of privacy and
security issues.
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1. Separate work from personal by having
completely separate account.
2. Post/behave as though NOTHING is private.
3. Review each site’s privacy settings regularly.
4. Develop a social media policy.
5. Reference expectations in a Handbook.
Social Media Best Practices
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What does your district’s Social Media
look like?
Discussion
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Interesting article by District
Administrator magazine
highlighting the difficulty in
dealing with social media.
http://goo.gl/NL81rx
Social Media Guidelines for School Administrators
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• Non-profit site based in
California with a mission to
inform individuals as to how to
protect their privacy.
• Fact Sheet 35 focuses on
Social Networking Privacy.
http://goo.gl/VN1uyH
Social Media Fact Sheet
aSource: http://goo.gl/VeINN0
TASB on School
District Employees
& Electronic Media
https://goo.gl/VelNN0
TASB offers guidance about policies and
other regulation of employees' use of
social media tools.
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• District Technology Resources
https://goo.gl/otz1Sj
• Hiring In The Age Of Social Media
https://goo.gl/D9CZTC
TASB Resources
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Read the full story at
http://goo.gl/ZkKaXa
Missouri family learns their Christmas
card photo was lifted from the web
and used by a Czech Republic
grocery store delivery service as an
ad on a van. They only discovered it
because some of their friends happen
to be visiting Prague at the time and
saw the van.
Where might your photos end up?
…and for what purpose?
American family's web photo ends up as Czech advertisement
It’s a Digital World
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#smedu social media in education
#smmanners social media manners
#smchat chat exploring social media
#smm social media marketing
#DLDay digital learning day
#digcit digital citizenship
Twitter Resources
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Questions
aSource: https://youtu.be/qtRSpZAPlqI
Social Media Can Be Positive
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What are some ways you can help
with educating about social media?
REFLECTING ON SOCIAL MEDIA AND SCHOOL DISTRICTS
Thinking it through…
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This Presentation http://dbenner.org
This work is licensed under a Creative
Commons Attribution-Non Commercial
4.0 International License
Resources used for this presentation are located at http://dbenner.org
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THE FOREGOING PRESENTATION
IS INTENDED TO BE USED SOLELY
FOR GENERAL INFORMATION
PURPOSES AND IS NOT TO BE
REGARDED AS LEGAL ADVICE. IF
SPECIFIC LEGAL ADVICE IS
SOUGHT, PLEASE CONSULT AN
ATTORNEY.
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