States make moves to protect students’ rights to online privacy
Nine states have passed privacy laws, with dozens more considering similar legislation. Now that the laws are going into effect, some schools are having to change policies, particularly with regard to athletes.
In 2010, then-University of North Carolina defensive tackle Marvin Austin spent an evening partying at a Miami Beach club. While at the club, Austin tweeted a lyric from rapper Rick Ross, posting, “I live in club LIV so I get the tenant rate … bottles comin (sic) like it’s a giveaway.”
Soon after Austin’s tweet, the National Collegiate Athletic Association launched an investigation into UNC, which revealed Austin received money and trips to Miami from agents, both of which are against NCAA rules, according to a 2012 article from TIME Magazine’s Sean Gregory. Other players also received improper benefits, the NCAA discovered.
UNC’s NCAA debacle, which resulted in a one-year postseason ban and scholarship cuts, spurred the university and others around the United States to increasingly monitor their athletes’ social media accounts. While barring officials from requesting passwords, UNC’s social networking policy says the school reserves the right to have athletic department staff access, monitor or receive reports about student-athletes’ accounts either on its own or through a third party.
Growing numbers of state lawmakers have identified the proliferation of such policies as a troubling trend, and in the past couple of years, eight states — Arkansas, California, Delaware, Michigan, New Jersey, New Mexico, Oregon and Utah —have enacted laws prohibiting postsecondary institutions from seeking social media usernames or passwords from current and prospective students. (Illinois’ law takes effect Jan. 1, 2014 and, like Michigan’s, covers K-12 schools as well as colleges). As of July, privacy legislation has been either introduced or pending in a total of at least 36 states, according to information from the National Conference of State Legislatures.
All nine states’ laws protect personal social networking accounts and prohibit administrators from retaliating against those who refuse to provide their account information on applications or otherwise. They generally do not prevent officials from viewing accounts that are publicly viewable, but Michigan and Utah have clauses barring schools from assigning someone to search or monitor personal Internet account activity. Arkansas, California, Delaware and Oregon’s statutes also protect personal email accounts. New Jersey’s law, which took effect last year, even prohibits public and private institutions to ask whether students or applicants have social networking accounts at all.
Michigan State Sen. Aric Nesbitt said he first considered sponsoring a social media privacy bill about 18 months ago after reading an article about student-athletes who were asked for their social networking passwords. Nesbitt’s bill passed in December and took effect just before Jan. 1.
“I thought it was out of bounds,” Nesbitt said. “We looked at it and thought it was a common sense idea … just because the information is electronic and not physical … it still needs protection.”
Nesbitt said he was happy to see both sides of the political aisle work together to protect personal accounts.
“I think we have a model legislation here in Michigan. We were able to get the support of Republicans and the ACLU,” he said. “(It) recognized certain aspects of what we consider certain basic privacy rights.”
Social media law attorney Bradley Shear practices in Bethesda, Md., and helped write Delaware’s law, which was the first of its kind in the nation upon its passage in July 2012. The law in Delaware and the other states also covers students’ contracts for financial packages such as merit or athletic scholarships, Shear said.
“A school cannot put in a scholarship agreement or any other type of agreement … [a requirement] to hand over that information, at least for public institutions,” he said, noting that the law is murkier for private schools.
Contracts requiring student-athletes to provide account information to administrators are unnecessarily invasive, said Kevin DeShazo, founder of Oklahoma City-based social media monitoring company Fieldhouse Media, which according to its website has worked with more than 40 universities, including the University of Miami and the University of New Mexico, to help schools monitor athletes’ social media use. The company created a web-based platform called FieldTrack, which scans public accounts for keywords determined by universities using the service, DeShazo said.
“There’s no reason to ever have to give your password to anything or anybody,” he said. “It’s common sense.”
While DeShazo described schools’ desire to monitor accounts as “usually well-intentioned,” he said he was happy to see more states protect student-athletes’ rights to privacy.
“I don’t think schools are being malicious,” he said. “They’re protecting themselves, but if someone says (accounts are) private then you have to respect that.”
Shear said schools in states with privacy protections violate them when using social media monitoring services to track students’ activities online. He cited schools’ desires to gather student-athletes’ account usernames as most concerning.
“If the school verifies the student’s social media username or digital account information, somebody has to authenticate it,” he said. “Schools do not have a legal duty to monitor their students’ personal accounts. There’s no reason to create a new liability and new legal duties.”
Colleges react to new privacy laws
The new laws are forcing some colleges to change their practices with regards to student-athletes.
In the past, players at Utah State had to sign an agreement stating they will grant full permission for the university and other third party monitors to gain access to ‘friends only,’ private and other similarly designated areas of social media accounts. Last year, officials told the Student Press Law Center that refusal to sign the contract could be grounds for dismissal from sports teams.
Utah State’s 2013-14 student-athlete handbook was recently updated to reflect the new law, which took effect in May. The social networking policy says student-athletes must understand reviews the department conducts, whether by themselves or with the help of a third party, are “intended to educate” players about reputation risks.
“Utah State Athletics does not actively monitor student-athlete social media accounts as a department or through a third party,” said Amber Childers, Utah State’s academic and life skills coordinator, in an emailed statement. “We, as a department, do not require student-athletes to friend/unfriend or like/unlike any specific social media accounts of the department, teams or staff. We do not maintain a log of social media accounts held by student-athletes.”
Northwestern University is another school that is revising its policy in response to the new law. Northwestern’s current social networking policy for student-athletes, which is posted on the school’s athletics website, states players must provide “full access” to coaching staff and others at NU’s athletics department for “any and all personal online networking pages.”
Illinois bill sponsor LaShawn Ford, D-Springfield, said that without the bill, colleges and universities such as Northwestern could believe they have the right to request social media usernames and passwords from their students. He also said it violates Facebook’s terms of service to provide social media passwords to others besides the account holder.
“Students have a right to privacy just like everyone else,” Ford said. “It doesn’t just protect the student’s privacy. It protects the school.”
When a reporter from the Student Press Law Center read the policy to Ford, he said it would be illegal for the university to continue to enforce it once the law takes effect Jan. 1.
“Any school sets themselves up for a lawsuit when they violate the right to privacy, and (Northwestern’s policy) would clearly violate the right to privacy,” he said. “I think that this bill will prevent that.”
Doug Meffley, director of digital and social communications at Northwestern, said the law’s passage has sparked the university to take a second look at its rules.
“It was a heavy topic of discussion around our office because it could have forced kids to give up passwords,” he said. “We’ve never done that here. It’s all been just friending and following and making sure we can see the content that they’re putting on.”
The current rules allow officials to view, friend and follow student-athletes’ private and public accounts, Meffley said. As of September, the department is working on rewriting its policy, which he said is not directly related to the state’s new law.
“The policy itself is just outdated, especially the version we have in our student-athlete handbook,” Meffley said. “There are still references to MySpace and things like that.”
Several schools in states with the new laws say their policies won’t need to be changed. Arkansas passed its own bill in April of this year, which applies to educational institutions such as the University of Arkansas.
“We never did ask for passwords, from students or employees, current or prospective,” Arkansas media relations spokesman Steve Voorhies said in an email. “It is, of course, easy to monitor social media accounts — no password is needed — and if we become aware of a student or employee posting something objectionable disciplinary action could be taken.”
University of Oregon assistant athletic director of athletic communications Andy McNamara echoed Arkansas officials, saying Oregon’s law, which Gov. John Kitzhaber signed June 13 of this year, is a “non-issue” and that Oregon’s athletics department “has never required student-athletes to turn over their social media passwords.”
Oregon Sen. Ginny Burdick, D-Portland, who wrote her state’s bill, said after its passage that it resolves issues that arose with the increasing popularity of social media in colleges and universities.
“If a student chooses to keep his or her personal social networking page private, it is not acceptable for a college or university to demand access as a condition of admission,” she said in a statement. “(The bill) strikes a good balance between student privacy and the legitimate information needs of colleges and universities.”
Monitoring common in states without laws
In states without legislation, social media monitoring of athletes is increasingly the norm, with larger schools often outsourcing the monitoring to third-party companies.
In August, The Lantern at Ohio State University revealed the university had signed a $360,000 contract with JumpForward to monitor athletes and coaches. Ohio State’s actions also came after NCAA violations were uncovered.
According to the contract, Ohio State will provide JumpForward with a list of athletes to be tracked, as well as keywords to be tracked. So they can monitor athletes, Ohio State will give JumpForward a list of students’ usernames and passwords.
Similar monitoring occurs elsewhere, as well: At the University of Oklahoma, the student-athlete handbook states the athletic department “is currently and will continue to monitor all online social networking sites,” adding that student-athletes must give the department their usernames and accept department members as friends or followers. Also, Florida Gulf Coast University’s handbook says all teams must choose at least one coach or administrator who is responsible for “having access to and regularly monitoring the content of team members’ social networking sites and postings.”
Jason Leonard, executive director of athletics compliance at the University of Oklahoma, said the school uses a social media monitoring company to track about 250 of its student-athletes’ public accounts, as well as employs someone full-time to watch social media activities. The university created its social networking policy in September 2008, with the most recent update being released in May, Leonard said.
“All of our individuals have public accounts, and we are seeing the same information that everybody in the world is allowed to see,” Leonard said. “We saw a need because of the fact that most students of the younger generation tend to express themselves through social networking sites … we felt a need to make sure that we monitor our student-athletes to not only protect them but to protect us as well.”
The university has been keeping a close eye on other states’ social media privacy laws, but Oklahoma has not had issues with student-athletes’ compliance regarding its policy, Leonard said. He said the university recognized the importance of respecting students’ First Amendment rights.
“It’s been a scenario where they understand we are trying to help them. There are things that you could put out there that are negative toward your brand, your image, ” he said. “There’s always the freedom of speech argument … I’m sure there’s good arguments on both sides. Luckily we haven’t had to deal with that in the state of Oklahoma.”
If Oklahoma passes privacy legislation in the future, the university would make policy changes accordingly, he said.
“In terms of one side or the other, tell us what parameters we can work in and we’ll work within those,” he said. “Our job is to protect the kids that are athletes that are here at the University of Oklahoma.”
By Margaret Baum and Samantha Vicent, SPLC staff writers.
Fall 2013, reports