Friday, September 2, 2011

Spying on NCAA Student-Athletes By Utilizing Social Media Monitoring Firms May Be Unconstitutional

As we begin the NCAA college football season, student-athlete social media usage is being hotly debated and dissected by the media. Some are advocating social media bans while others are recommending some of our country's future leaders to expose to third-party companies and/or school compliance departments their non-public private online interactions with others. After reading multiple articles from numerous major news outlets, I realize that some members of the media do not understand the legal issues involved with social media.

Monitoring the public social media posts of student-athletes is legal. In fact, it may be advisable to check up on a student-athlete's public online posts in the same manner as his/her real world activity. Checking up on a student in the real world encompasses face to face meetings, phone calls, class and study hall attendance record review, grade point average eligibility requirements, etc...

A couple months ago, Crain's Business Insurance discussed the legal liabilities that colleges and universities may encounter if they implement social media monitoring programs. None of the lawyers or risk professionals quoted in the Crain's Business Insurance article advocated that schools implement social media monitoring programs. In the same article an NCAA spokesperson stated, "the NCAA does not require its member schools to monitor the social media accounts of student athletes."

On June 22, 2011, and June 28, 2011 I touched upon the legality of utilizing social media monitoring services on student-athletes. The 1st, 4th, and 14th amendments of the U.S. Constitution may be violated along with numerous state and federal laws, and there may be discrimination claims when a public school's compliance department requires a student-athlete to participate in a social media monitoring program.

To better understand the issues involved with social media monitoring of private social media content it is essential to explain some of the details. For example, one social media monitoring company requires student-athletes to install social media monitoring and archiving software onto their personal electronic devices. Another company requires that student-athletes Facebook Friend them and/or allow them to follow a student's protected Twitter account. These companies then capture the student's social media activity and send it to the schools who hire them.

In addition to monitoring a student's private social media content these companies and/or a school's compliance department may also archive a student's private social media content for 4-7+ years. Therefore, instead of one entry point where data may be exposed there are at least 3 possible data leakage opportunities where a student's (and his/her online friends) private posts, photographs, messages, etc... may be disseminated to those who are not the intended recipients.

One of the social media monitoring firms boasts that its software has found numerous photographs of students in uncompromising positions. Of course it would find these photographs on students' private social media pages because students may have a reasonable expectation of privacy on their private social media accounts. This social media monitoring company also monetizes students' copyrighted photos by uploading them onto its corporate website as a selling point to prospective clients as to what material its service has found.

I highly doubt any student would under their own free will and accord install an invasive software program onto their personal computer that would enable a third-party to view, capture, archive, and monetize their or their friends' personal photographs and social media content. The social media monitoring companies that require students to install monitoring programs onto their personal electronic devices protect themselves legally with the terms of service in their user agreements that students must accept before installing their software and/or through the contracts it signs with athletic compliance departments.

Another method used to gain access to student-athletes' private social media posts requires student-athletes to Facebook Friend a third-party social media monitoring company and/or its school's compliance department. If a public college or university requires its student-athletes to Facebook Friend a third-party and/or its compliance department it may be deemed an unreasonable search and seizure under the 4th amendment. Student-Athletes may have a reasonable expectation of privacy if their social media page is set to private and not available for all to access.

The activities described above are an outrageous disregard for the U.S. Constitution and numerous federal and state laws. Public schools that require their students-athletes to install social media monitoring software onto their personal computers and/or require student-athletes to provide access to their non-public social media pages to their compliance departments directly or via third-parties may already be facing tremendous legal liability. The companies who are providing social media monitoring services may also have significant legal liability challenges ahead.

To learn more about these issues you may contact me at www.shearlaw.com.

Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.