Friday, May 18, 2012

Are UDiligence and Varsity Monitor advising NCAA schools to violate the Stored Communications Act?

Over the past couple of years, companies with names like UDiligence and Varsity Monitor have been created to monitor the digital activity of student-athletes. At first glance it may seem like a good idea to require students to provide access to password protected social media content. However, once you understand what this means from a legal and financial perspective you may realize that this is a Pandora's Box that should not be opened.

UDiligence and Varsity Monitor appear to prey on the fears of college athletic departments even though the NCAA recently ruled that schools do not have a duty to monitor password protected social media content. Instead of helping NCAA athletic departments, these services may be exacerbating the situation because it appears they may be encouraging colleges to create new legal duties and violate the constitutional rights of their students along with multiple federal and state laws.

Within the past couple of weeks, both UDiligence and Varsity Monitor have taken down their client lists from their websites. Have the schools pressured them to do so? Or, did both of these companies take down their client lists because the media has started to ask in-depth questions about their services?

Pietrylo
v. Hillstone Restaurant Group, 2009 WL 3128420 (D.N.J. 2009), is a case that appears analogous to the situation where schools are "requesting" that their student-athletes provide access to their password protected digital/social media accounts. In Pietrylo, an employee "did not feel free" to deny her boss access to a password protected MySpace account. The jury found that the employer violated the Stored Communications Act and the case was upheld on appeal. Therefore, since students "may not feel free" to deny their athletic departments and/or third parties access to their password protected social media accounts these services may be advising schools to violate the Stored Communications Act.

Since requesting employees to provide access to their password protected social media accounts has been found to violate the Stored Communications Act, it may also violate the Stored Communications Act for NCAA schools to "request" access to their students' password protected social media accounts. Requiring public school students to download applications and/or Facebook Friend university employees or agents may also violate the 1st and 4th Amendments along with the Electronic Communications Privacy Act, and multiple other federal and state laws.

The bottom line is that schools that engage UDiligence or Varsity Monitor may be paying $10,000 plus dollars per year for a service that may be creating more problems than it solves.

To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.

Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

2 comments:

  1. Have you tried talking to them? This just seems like a bunch of speculation. Talk about playing on peoples' fears. I know you're more professional than that. You might be unknowingly wrecking the reputation of companies that provide legitimate services. I'm not trying to be uber critical, but I'm not comfortable with the way you have been ripping these guys without giving them a chance to give their side.

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    1. Thank you for your comments. Your comments appear to personally attack me. Questioning my professionalism is very troubling. Comments:
      http://www.nytimes.com/2012/03/31/sports/universities-track-athletes-online-raising-legal-concerns.html?pagewanted=1&ref=sports on the New York Times March 30, 2012 article about these issues that appear to have been made by you (Please confirm or deny that you made these comments) demonstrate that you may support a student being required to Facebook Friend a third party and/or a school and/or requiring a student to download social media monitoring software to monitor their personal digital accounts. Is this true? If so, I would appreciate you explaining your position.

      Both UDiligence and Varsity Monitor have had multiple positive articles written about them without opposing thoughts on the matter. I am exercising my 1st Amendment Right to educate the public about some very troubling legal issues that need to be discussed by the national media, lawyers, and lawmakers from around the country.

      State universities do not want to create new legal duties and financial exposure before fully understanding all sides of this issue. Colleges need to understand the significant legal issues involved with requiring students to provide access to their password protected digital content. This is no longer an athletic department issue but a university matter and a public policy issue that needs to be addressed via a national conversation. It appears that Varsity Monitor requires student-athletes to Facebook Friend them. It appears that UDiligence requires that students download their application via Facebook.

      Taxpayer dollars should be spent on educating our children and not spent on reactive monitoring services that may put our children's privacy at risk and may also violate multiple state and federal laws.

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