Wednesday, August 14, 2013

Illinois Enacts Right To Privacy in the School Setting Act

Illinois has recently become the 2nd state in the country to enact social media privacy legislation that provides protection to the personal digital accounts of K-12 and post-secondary students. Michigan was the first state to enact social media privacy protections for K-12 and post-secondary students last year.  Multiple other states across the country have enacted social media privacy laws that protect post-secondary school students.   

The Right to Privacy in the School Setting Act was enacted because of several troubling social media related situations in Illinois.  For example, there was an incident where an Illinois public middle school violated the constitutional rights of several students by requiring some students to turn over their Facebook and email usernames and passwords.

Unfortunately, this aspect of the act is very troubling and will have unintended consequences:

Section 10. Prohibited inquiry.
(d) This Section does not apply when a post-secondary school has reasonable cause to believe that a student's account on a social networking website contains evidence that the student violated a school disciplinary rule or policy.

 Northwestern University will be required to change its student-athlete social media policy before 1/1/2014 due to the new law.  Northwestern's Online Soical Networking Student-Athlete policy states,  "You must provide full access to members of your coaching staff and/or selected members of the Athletics Department for any and all personal online networking pages." and "You must fully participate in any system developed by your coaching staff to assist in self-monitoring your teammates' personal online networking pages (e.g., buddy system)." This language clearly violates the new law. 

As a parent of young children, I would never turn over the passwords of their personal digital accounts absent a warrant and/or a court order and I believe this law is poorly drafted.  Does this law violate the Stored Communications Act and/or a student's first and/or 4th amendment?  Time will tell.

The bottom line is that K-12 and post-secondary schools must ensure they do not create social media policies that violate state/federal laws and/or our Constitution.  Its ironic that social media was intended to expand the freedom of speech; unfortunately, the reality is that some institutions that don't like the messages being created are using social media to curtail free speech rights.   

Copyright 2013 by the Law Office of Bradley S. Shear, LLC All rights reserved. 

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