Delaware is the first state to pass student social media privacy legislation. While HB 309: An Act to Amend Title 14 of the Delaware Code Relating to Education was passed by both the Delaware General Assembly and Senate over the weekend, it still needs to be signed by Delaware's governor to become law.
Delaware's HB 309 utilized Maryland's SB 434 as a template. Maryland's SB 434 passed the Maryland Senate 46-0 but died at the end of the legislative session due to the logjam created when the legislature was unable to pass a budget. Despite the setback in Maryland, multiple other states and Congress have introduced legislation that may protect schools from social media related lawsuits while also protecting the personal digital privacy rights of students.
HB 309 is needed because colleges and universities across the country are requiring some of their students to download social media monitoring software onto their personal electronic devices or accounts in order to keep their scholarships. This practice has become an epidemic. The CEO of one social media monitoring company has boasted that requiring students to provide access to password protected digital content “is the new drug testing — it will be as common as being asked to take a drug test in the next two years."
Under Delaware's HB 309, colleges and universities may not:
Require a student to provide his Facebook username and/or password to a school employee or agent of the school to obtain or keep a scholarship
Require a student to download social media monitoring software onto their personal iPhones, computers, accounts, etc...
Require a student to Facebook Friend a school employee or agent of the school
In return, Delaware colleges and universities may have a legal liability shield against claims that they have a legal duty to monitor their students' personal social media accounts. This legal liability shield may become extremely important in the near future in light of the recent lawsuit against the University of Virginia, its coaches, and athletic director for failing to properly monitor one of their star student-athletes.
Hiring social media consultants who advocate monitoring students' personal social media/digitial accounts may lead to lawsuits and judgements that may financially harm public schools and taxpayers. The bottom line is that colleges and universities in Delaware and across the country need to reexamine their general student and student-athlete social media policies to ensure that they do not violate state and/or federal law.
To learn more about legal student social media policies and how to properly educate your students and employees about social media you may contact me at http://shearlaw.com/attorney_profile.
(Full Disclosure: I advised Rep. Brady and Sen. Bushweller's offices on HB 309 to ensure that it would mutually benefit colleges, universities, and students.)
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.