Five Ways to Keep

Social Media
From Being a
Legal Headache
Some basic privacy issues
that district leaders need to understand
BY BRADLEY SHEAR
From T.H.E. Journal
During the past 10 years,
privacy, freedom of speech,
and technology issues have
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 has required the K-12 com-

munity to better understand

the ramications 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

Bradley Shear is a lawyer who counsels educational institutions

about technology law and policies. He blogs at Shear on Social Media Law. Condensed, with permission, from T.H.E. Journal (March
17, 2015). The complete version of the article is available at http://
thejournal.realviewdigital.com.

54

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Keep Social Media from Being a Legal Headache

it may be difcult 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 dont require
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-ts-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
guidelinesand its efforts did
not attract an outpouring of
legal threats.
By contrast, Californias Lodi
Unied 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
(TX) High School has not received the same negative media

There is no one-sizets-all social media

policy.
attention as Lodis, 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 studentathletes to Like Lamar Baseball on Facebook and remove a
post from a personal account if
requested.
These requirements violate
the First and Fourth Amendment rights of students and may
create tremendous legal liability
for the school district.
While different communities

January 2016

55

THE EDUCATION DIGEST

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 students personal
belongings on school grounds.
Unfor tunately, there is no
clear denition of what constitutes reasonable suspicion,
so school officials should
tread carefully before searching a students personal digital
devices and social media accounts.
In 2010, a Pennsylvania
school district paid $33,000 to
settle a case in which a high
school students cell phone
was conscated and unconstitutionally searched. A Minnesota
school district paid $70,000 in
2014 to settle a federal lawsuit
in which the district threatened
a 6th-grade student until she
gave her school access to her
personal email and social media
accounts.
These incidents and oth-

56

ers 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
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 company making intentional misrepresentations about
its business.
Californias 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 (AL)

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Keep Social Media from Being a Legal Headache

City Schools paid more than

$100,000 to a security rm that
is monitoring students on social
media. According to AL.com,
Huntsvilles student social media surveillance has led to 14
students being expelled12
of whom were African-American. These gures have led one
elected ofcial to claim that its
districts social media monitoring system may be unfairly
targeting black children.
School districts that hire
monitoring services to track
students on social media may
also be monitoring 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
on 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 notication
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 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 nancial
responsibility.

Cyberbullying and Social

Media Impersonation
Cyberbullying and online impersonation are growing problems, and courts are responding
to them. 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 staff or students have violated any of these statutes, they
should turn the matter over to
law enforcement. There are signicant First Amendment issues
to balance when dealing with

January 2016

57

THE EDUCATION DIGEST

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 Term 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
customersthey 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.
Googles consumer privacy
policy governs its Apps For Education platform. While Google
has promised to stop scanning
student emails for advertising
purposes, this promise does not
extend to Google+ or YouTube,
since neither of these services
are dened as Google Apps Core
Services. Allowing students
to access Google+ or YouTube
from school-created accounts
may provide a back door to
allow Google to mine student

58

data connected to Google Apps

For Education accounts, since
these services are governed by
the same privacy policy that allows for the combination of all
Google account data. This information may then be used for behavioral advertising and other
noneducational purposes.
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.

Mom, if nobodys perfect,

how could I ever be a
straight A student?

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