Shear on Social Media Law

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

noreply@blogger.com (Bradley Shear) — Sat, 19 May 2012 02:13:00 +0000

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.

SNOPA (HR 5050) May Protect Insurance Companies From Schools and Businesses That Demand Access To Personal Password Protected Social Media Accounts

noreply@blogger.com (Bradley Shear) — Tue, 08 May 2012 15:46:00 +0000

I have written how the Social Networking Online Protection Act (HR 5050) may benefit employees, job applicants, employers, students, student applicants, and schools. Now, I am going to explain how HR 5050 may benefit insurance companies.

Does the insurance industry realize that multiple schools are creating a massive database of their students' password protected social media content and activities? With access to all of this data these schools may become responsible for everything their students do online and everything that is referenced online and/or inferred online that may occur in the real world.

The Universities of North Carolina, Texas, Nebraska, and Oklahoma may not only be violating the Stored Communications Act with their student-athlete social media policies but also may be creating tremendous insurability problems for their academic institutions.

Each of the above mentioned schools have engaged a company called Varsity Monitor. In order for students to keep their scholarships and play intercollegiate sports at these public institutions, they must Facebook Friend Varsity Monitor and provide unfettered access to their password protected social media/digital content. Varsity Monitor downloads the students' social media content and creates detailed reports about all of the students' digital activities. Requiring a student to provide access to their password protected social media/digital content may violate FERPA and/or other federal and/or state laws

Varsity Monitor along with above schools are compiling vast amounts of personal data on thousands of students. What happens when there is a data breach? In Varsity Monitor's agreements and policies it clearly states that by using their service they are indemnified against any legal issues that may arise. Therefore, when a data breach occurs who will be left paying for it? The schools' insurance companies.

According to the latest Ponemon Data Breach Study, the average cost of a data breach is $194 per record and the overall average organizational cost is $5.5 million dollars. These figures appear to be focused on what I would call traditional data breach issues (compromised social security numbers, dates of births, addresses, etc...) and not personal social media data breach issues (which may include traditional issues plus a list of friends, professional contacts, personal photographs, confidential interactions, potential blackmail information, etc...). Furthermore, according to Ponemon the biggest threat to data breach are those who have access to the data. Therefore, when a student-athlete becomes famous and his social media content contains embarrassing information will Varsity Monitor and/or school employees who have access to the data leak the password protected personal content for personal gain?

Are schools prepared for the increase in legal discovery requests that will accompany all of the data they have accumulated on their students? Are schools telling their insurance companies that they are accumulating all of this unneeded personal data on their students? Do the schools that engage Varsity Monitor or similar service providers such as UDiligence, or Centrix Social know that a data breach at Ohio State a couple years ago may have cost the University $4 million dollars to resolve. These costs included: investigative consulting, notification of the breach, and a calling center to answer questions or concerns.

Ohio State's insurance company may have covered the entire cost of this incident. However, will the insurance industry be willing to cover an incident when a school and/or Varsity Monitor mishandles personal password protected social media content and/or when a school is sued for negligent social media monitoring? This type of lawsuit may contain some of the same arguments as the recent $30 million dollar lawsuit against UVA by the family of Yardley Love. However, because of digital evidence a jury in a negligent social media monitoring lawsuit may award $100 million dollars plus to a plaintiff. If you don't think this could happen you may want to ask Dharun Rhavi's lawyer about the power of social media evidence.

If the insurance industry wants to be protected from having to pay out claims against schools and/or businesses who are requiring their students and/or employees to provide access to their password protected digital content they will support the Social Networking Online Protection Act (HR 5050).

(Full Disclosure: I am working pro bono with Rep. Engel's office on the Social Networking Online Protection Act .)

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.

Colleges & Schools That Force Their Students To Facebook Friend Them May Be Violating the Stored Communications Act

noreply@blogger.com (Bradley Shear) — Sun, 06 May 2012 17:12:00 +0000

Any school or university that requires its students to Facebook Friend a coach, a school administrator, or a third party in order for their students to keep their scholarships, participate in intercollegiate athletics, etc... may be violating the Stored Communications Act (SCA).

Under the Stored Communications Act, forced Facebook Friending may be against the law. Since the SCA was enacted in 1986, before the existence of modern social media, the Social Networking Online Protection Act (SNOPA) is needed to catch up with modern technology. Any school or university employee who believes that it is legally prudent to require their students to provide them access to their personal password protected digital content without a court order may want to learn more about the lawsuit against the University of Virginia (UVA) by the family of Yardley Love.

Yardley Love was a student-athlete at UVA who was murdered by fellow UVA student-athlete George Huguely. According to ABC News, Yardley Love's family is suing the coaches of the men's lacrosse team along with the athletic director because they allegedly knew or should have known that George Huguely was a danger to others. If UVA was social media monitoring George Huguely and missed or misinterpreted a Tweet, or a Facebook post, or other online content that may have indicated he may be a danger to others this $30 million dollar lawsuit against UVA may have been a $100 million dollar plus lawsuit.

With access comes responsibility. Schools and/or universities that require their students to Facebook Friend coaches, school employees, third parties, etc... and/or require students to install social media monitoring software onto their personal electronic devices may become liable for their students' online content and conduct along with offline conduct that was referred to and/or inferred by a Tweet, Facebook post, blog comment, etc.... Does a school or university want to be sued for negligent social media monitoring or failure to social media monitor?

If a school or university legal department wants to protect itself against these types of social media lawsuits they will enthusiastically support the Social Networking Online Protection Act (HR 5050) because it may provide them a legal liability shield against these claims. If a school or university wants to become the social media police and become liable for their students' online behavior and offline behavior that may have been referred to and/or inferred online that is their prerogative. If so, they may want to obtain cyber liability insurance that contains at least $100 million dollars in per incident coverage to protect against social media lawsuits.

(Full Disclosure: I am working pro bono with Rep. Engel's office on the Social Networking Online Protection Act .)

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.

Maryland's Facebook Username and Password Law is a Win For Employers, Employees, and Job Applicants

noreply@blogger.com (Bradley Shear) — Thu, 03 May 2012 03:23:00 +0000

Maryland Governor Martin O'Malley signed into law today legislation that makes Maryland the first state to ban employers from requiring employees or job applicants to provide access to their personal digital/social media accounts. While Maryland is the first state to enact this type of legislation, California along with other states and the federal government may soon follow Maryland's lead.

Senate Bill 433 is a huge win for the business community because it may provide Maryland businesses with a legal liability shield from plaintiffs who may allege that businesses have a legal duty to monitor their employees' password protected digital content. Unfortunately, some Maryland business groups have underestimated the tremendous win that SB 433 is for the business community. This groundbreaking law may collectively save Maryland businesses millions of dollars a year in costs to monitor their employees' personal digital accounts. In addition, this law may save Maryland businesses millions of dollars per year on cyber liability insurance premiums that would accompany a duty to monitor employees in the digital/social media space.

With access comes responsibility. Since Maryland businesses will not have access to their employees' personal digital content they will not become responsible for their employees' personal social media behavior. Employers do not have a duty to monitor everything their employees do in the privacy of their real world homes so employers do not want to create a duty to monitor their employees in their digital homes.

Do businesses want to have access to content that may demonstrate that an employee is a member of a protected class? There already is a lawsuit alleging "Facebook Like Discrimination". In this lawsuit, a former federal employee alleges that he was discriminated against because his supervisor became aware that he "Facebook Liked" a page that may have indicated his sexual orientation. Therefore, this new law may save employers millions of dollars per year in legal fees and judgments that may accompany access to an employee's personal digital content.

This legislation is also a major victory for employees and job applicants. A Maryland employer may no longer ask employees or job applicants to provide access to their personal digital or social media accounts. For example, during a job interview an employer may not request an applicant log into their personal Facebook account or to "Facebook Friend" a manager. In addition, an employer may not require an employee provide access to their personal password protected digital accounts.

Job applicants and employees must understand that they should still be careful about the content they post online, utilize the proper privacy settings, and carefully screen who they "Friend" online. This is a watershed moment for both the business community and digital privacy. I hope that other states along with the federal government follow Maryland's lead to enact legislation that demonstrates an understanding of the legal and public policy implications of the Social Media Age.

(Full Disclosure: I was not paid for my work on this legislation. I worked on this legislation because I want to protect employers, employees, and job applicants from unforeseen legal issues that may arise due to a lack of understanding of the public policy and legal implications of social media usage. Therefore, I was in constant contact with Maryland Senator Ronald Young and Maryland Delegate Shawn Tarrant to work with them to create a common sense solution that protects the interests of employers, employees, and job applicants.)

To learn how social media intersects with the law you may contact me at http://shearlaw.com/attorney_profile.

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

SNOPA: The Social Networking Online Protection Act

noreply@blogger.com (Bradley Shear) — Fri, 27 Apr 2012 16:08:00 +0000

The Social Networking Online Protection Act was introduced today by Congressman Elliot Engel of New York. The bill would ban employers and schools from requiring access to password protected digital content. The bill is a win for businesses, schools, and privacy. The bill would protect businesses and schools from creating a legal duty to monitor password protected digital content. Therefore, the bill protects businesses, schools, and taxpayers. In addition, the bill is a win for employees, job applicants, students, and student applicants because it protects them from being required to provide access to their password protected digital content

During my conversation with Bob Sullivan of MSNBC I stated that SNOPA provides employers and schools a shield against legal liability so no one can claim that employers and schools have a legal duty to monitor password protected digital content. In addition, I mentioned that because the bill protects a wide range of interests, it has a better chance at success than previous efforts.

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.

(Full Dislcosure: I am working with Congressman Engel's office on this issue in a pro bono capacity. If you believe this is important legislation please contact Congress to voice your support)

Occupy Wall Street Public Tweets Subpoena Decision May Have A Troubling Analysis

noreply@blogger.com (Bradley Shear) — Tue, 24 Apr 2012 01:39:00 +0000

A judge ruled earlier today that deleted public tweets may be used as evidence in an Occupy Wall Street protestor's trial. While I generally agree with the main point of this decision that public Tweets are fair game, some of the analysis behind the decision may be very troubling.

Once a Tweet is public to the entire world you don't have an expectation of privacy even if the Tweet has been deleted. Former Congressman Anthony Weiner learned the hard way (no pun intended) that once you post something publicly you have no expectation of privacy. However, if one has a protected Twitter account where the owner of the account has the ability to choose who may have access to his Tweets and/or sends a Twitter Direct Message the user may have an expectation of privacy and then a warrant may be needed for the government to be able to access the Tweets and/or the Direct Messages.

One aspect of the decision I found to be very troubling was on page 4 where it states, "Twitter’s license to use the defendant’s Tweets means that the Tweets the defendant posted were not his." I believe that this analysis is incorrect and demonstrates that Judge Matthew A. Sciarrino, Jr. may not fully understand social media, digital technology, and public policy. In addition, on page 6 of the decision, it states, "While the Fourth Amendment provides protection for our physical homes, we do not have a physical “home” on the Internet." If Judge Sciarrino's reasoning is extended to all online services that may mean that as a society we don't have an expectation of privacy for password protected digital content. If we don't have an expectation of privacy for our password protected digital content this may drastically harm the ability for technology companies to monetize cloud computing and other future electronic services because businesses and consumers may be hesitant to utilize these services if the government has the ability to access our password protected digital content without a warrant.

While we may not have an expectation of privacy for our public Tweets, some of the analysis for this decision is terribly flawed and demonstrates the need for our judiciary to become better educated about the issues inherent with social media and technology.

To learn how social media intersects with the law you may contact me at http://shearlaw.com/attorney_profile.

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

Maryland: The First State To Protect our Social Media Privacy and Security

noreply@blogger.com (Bradley Shear) — Mon, 09 Apr 2012 19:33:00 +0000

Maryland has become the first state to protect the social media and electronic account privacy and security of its citizens. The legislation is a win for employers and employees. The Maryland legislature said loud and clear that in these difficult times businesses should not be required to spend tens of thousands of dollars per year to hire social media monitoring companies to review their employees' password protected digital content. In order to become enacted, SB 433 still needs to be signed by Governor Martin O'Malley. Once it is has been signed, the legislation will not go into effect until October 1, 2012. Therefore, until this legislation becomes law nothing has changed in the sate of Maryland.

This legislation may also shield companies in Maryland from lawsuits that allege that a company failed to properly monitor their employees' private electronic content and from negligent social media monitoring lawsuits. The potential savings to Maryland businesses per year is tens of millions of dollars. In general, Maryland employees will now be protected against being required to turn their password protected digital content in order to obtain or keep a job.

I personally reached out to Facebook about Maryland's legislation and asked them for their support. I want to publicly thank Facebook for their assistance. To Facebook's credit, they came out strongly against employers and schools demanding access to password protected digital content on March 23, 2012. I am hopeful that Facebook along with other Internet companies will strongly support federal legislation that would protect both employees and students from having their electronic account privacy and security compromised by those who don't understand social media, the law, or public policy.

For most jobs, employees should not be required to provide access to their password protected electronic content. In addition, students at public schools should never be required to provide access to their password protected electronic content to their schools and/or social media monitoring companies such as UDiligence, Varsity Monitor, or Centrix Social.

On February 20, 2011, I publicly stated that this issue, "may one day be decided by the courts and/or state legislatures and/or Congress." I am proud to have successfully lobbied Maryland to pass this groundbreaking legislation. I have discussed these troubling issues with multiple state legislators across the country and federal officials. I am hopeful that more states and the federal government pass similar legislation. I urge everyone to lobby their representatives in their state legislatures and in Congress to pass bipartisan legislation that protects the personal electronic privacy and security rights of employees and students and provides the business community with bright lines rules that will protect them against social media lawsuits.

(Full Disclosure: I was not paid for my work on this legislation. There is a tremendous lack of understanding about the legal and public policy issues inherent in the Social Media Age and I want to protect employers, employees, job applicants, schools, students, student applicants, and taxpayers from unforeseen legal issues that may arise. Therefore, I was in constant contact with Maryland State Senator Ronald Young and Maryland State Delegate Shawn Tarrant to work with them to create a common sense solution to these problems.)

To learn how social media intersects with the law you may contact me at http://shearlaw.com/attorney_profile.

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

Schools May Need a Search Warrant To Access Their Student-Athletes' Personal Password Protected Electronic Accounts

noreply@blogger.com (Bradley Shear) — Mon, 26 Mar 2012 18:23:00 +0000

According to the Penn State Daily Collegian, Penn Sate Police seized illegal drugs and paraphernalia from the home of one of their football players. Police had entered the home of a current and former student-athlete to investigate a break-in. Upon realizing there may be illegal drugs, it appears the police obtained a search warrant.

Since in the real world a search warrant is generally required to obtain evidence in one's real home, a search warrant is also generally required in the digital world to search one's password protected digital home. In order for a public school to obtain access to the password protected personal social media and digital accounts (non-school issued) of their student-athletes they may need a court order. A public school may not require a student to utilize the services of UDiligence, Varsity Monitor, or Centrix Social in order to keep his or her scholarship and may not retaliate against a student for refusing to provide access absent a court order.

Therefore, if a student at a public school refuses to provide UDiligence, Varsity Monitor, Centrix Social, or school employees their personal social media or digital account information a public school may not require the student to do so. The 1st, 4th, and 5th amendments along with the Stored Communications Act, the Computer Fraud Abuse Act, and multiple state laws may be implicated in social media monitoring.

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.

Facebook Firmly States Employers and Schools May Not Access Password Protected Content

noreply@blogger.com (Bradley Shear) — Fri, 23 Mar 2012 17:39:00 +0000

Facebook has firmly come out against those employers and schools who are requiring employees, job applicants, student-athletes, and college applicants to provide them access to personal password protected Facebook accounts. Facebook's statement in part reads:

"If you are a Facebook user, you should never have to share your password, let anyone access your account, or do anything that might jeopardize the security of your account or violate the privacy of your friends."

Social Media Monitoring Companies such as Varsity Monitor, UDiligence, and Centrix Social appear to be advising some of their clients to violate Facebook's Terms of Service, along with the constitutional rights of student-athletes, and the personal privacy rights of student-athletes' Facebook Friends. As I have stated over and over again, in general, employers and public schools may not require access to personal password protected electronic content.

Earlier this month, I told MSNBC's Bob Sullivan that a national law was needed and it was just announced that U.S. Senator Richard Blumenthal is in the process of introducing legislation to ban these practices. I am proud that my pro bono advocacy efforts in my home state of Maryland to ban these practices with Senate Bill 434 and Senate Bill 433 has now become a national and international issue.

(Full Disclosure: I am not being paid for my work on this issue. I am advocating for everyone because I believe that privacy rights still matter in the Social Media Age. I want to protect employers, employees, job applicants, schools, students, college applicants, and taxpayers from unforeseen legal issues that may arise if these practices continue.)

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.

Dharun Ravi is Found Guilty of Tampering With Evidence For Tweet Deletion

noreply@blogger.com (Bradley Shear) — Fri, 16 Mar 2012 15:52:00 +0000

Breaking news. Dharun Ravi has been found guilty of tampering with evidence because he deleted at least one tweet. I first wrote about his case on May 1, 2011. According to the New Jersey Star here is a breakdown of the verdict.

This case should be a wake up call for everyone who utilizes social media, text messages, email, and other digital platforms that your online activities are just as important if not more important than your real world activities because of the digital footprints that are created.

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.

Multi-Milion Dollar Jury Verdict Against Virginia Tech Proves Schools Should Not Create A Duty To Social Media Monitor

noreply@blogger.com (Bradley Shear) — Thu, 15 Mar 2012 01:57:00 +0000

The 2007 Virginia Tech massacre that left 33 dead on campus was a terrible tragedy. Earlier today, a jury found Virginia Tech negligent for its delay in warning its campus about the first shootings. Two of the families of those who were killed were awarded $4 million dollars each by a jury.

This case demonstrates why schools should not utilize the services of social media monitoring companies to review the password protected content of their students. On March 12, 2012, the NCAA stated that there is no "blanket duty on institutions to monitor social networking sites." Therefore, if there is no blanket compliance duty to social media monitor why create a legal duty to do so which may lead to multi-million dollar judgements for negligent social media monitoring?

After the the University of North Carolina Public Infractions Report was released, Varsity Monitor, a company that sells social media monitoring services responded to a Tweet that links to an article where I am quoted by Tweeting, "It is still best practice for the athletic dept to continue to monitor social media for brand and athlete protection & edu" (see below):

Now that two $4 million dollar jury verdicts have been returned against an academic institution for a delay in properly warning its students about a killer being on the loose on campus, imagine if a school follows the above advice by Varsity Monitor and a tragedy occurs that social media monitoring should have warned against but did not? Instead of multiple $4 million dollar jury verdicts would it be multiple $25 million or $50 million or $100 million dollar negligent social media monitoring jury verdicts?

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.

NCAA: Schools Have No Blanket Duty To Monitor Social Networking Sites Of Student-Athletes

noreply@blogger.com (Bradley Shear) — Tue, 13 Mar 2012 02:52:00 +0000

The NCAA has stated in the University of North Carolina Public Infractions Report dated March 12, 2012 (page 11), that it "declines to impose a blanket duty on institutions to monitor social networking sites.Consistent with the duty to monitor other information outside the campus setting (beyond on-campus activities such as countable athletically related activities, financial aid, satisfactory progress, etc.), such sites should be part of the monitoring effort if the institution becomes aware of an issue that might be resolved in some part by reviewing information on a site."

In other words, an NCAA member institution's duty to monitor is the same whether its a student's online or offline activities. Nothing more. I praise the NCAA for its decision in this case. The NCAA's decision mirrors the opinion that I stated on September 2, 2011 when I said, "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."

The NCAA's decision today has clearly stated that schools do not need to engage costly social media monitoring services that require students to provide access to their password protected electronic content. The companies that push these services are selling snake oil that is essentially a legal liability time bomb and they are preying off a school's fear. This has lead to some schools violating the constitutional rights of its students.

There is a lack of knowledge regarding social media, compliance, and the law. Unfortunately, several self-serving companies have tried to fill the void in college athletics and these companies have not only provided bad advice that may create tremendous legal liability for their clients but they also incorrectly interpreted NCAA compliance rules. These social media consultants have advised their NCAA member clients to waste tens of thousands of dollars on services they do not need. Every school that has engaged these social media monitoring services may want to demand a full refund from these consultants who do not understand social media, NCAA compliance rules, public policy, or the law.

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.

Minnesota School District Sued For Violating the Social Media Privacy Rights Of A Student

noreply@blogger.com (Bradley Shear) — Sat, 10 Mar 2012 23:23:00 +0000

A Minnesota school district has allegedly violated the social media privacy rights of one of its students. According to an American Civil Liberties Union press release: "the American Civil Liberties Union of Minnesota filed a lawsuit in Federal District Court against Minnewaska Area Schools and the Pope County Sheriff's office for violating the constitutional rights of a minor student."

The ACLU states, "In early 2011 R.S. posted a comment, while at home, on her Facebook page about her dislike of a school staff member. The school learned about the comment, and R.S. received a detention and was forced to write an apology to the staff member. She was disciplined again when she cursed on her Facebook page, complaining that someone reported her to the school. This time she was given an in-school suspension and was prohibited from attending a school field trip. The ACLU-MN contends that these sanctions violate her First Amendment right to freedom of speech. In a second incident R.S. was brought into a school administrator's office where she was coerced to turn over (against her will) login information to her Facebook and email accounts because of allegations that she had online conversations about sex with another student off-campus. Present at the search was a local deputy along with two school officials."

I find it very troubling that school officials and a local deputy would believe that it is constitutional to require a student to provide them her user name and password of a personal electronic account. If a student is forced to turn over her password to a social media account without a court order what will stop a school from requiring a student to turn over a personal email password and user name without a court order? This behavior is a clear 1st and 4th Amendment and possibly a 5th Amendment violation of the U.S. Constitution.

This behavior is not limited to violating the privacy rights of middle schoolers. According to an MSNBC report, employers and universities across the country are violating the privacy rights employees, students, and applicants.

There may be some situations where requiring access to personal password protected electronic content may be necessary. For example, some high security clearance jobs, some national security positions, and some regulated industries have invasive background checks. However, in the overwhelming majority of positions, there should be protection against requiring access to password protected electronic content. With access comes responsibility, so employers and schools that demand this information may open themselves up to unforeseen legal liability and may create new legal duties where none existed before. Therefore, why risk a multi-million dollar lawsuit and judgement?

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.

Maryland Legislation Would Protect Employee and Job Applicant Social Media Privacy Rights

noreply@blogger.com (Bradley Shear) — Fri, 09 Mar 2012 03:11:00 +0000

The state of Maryland continues to lead the way regarding social media and the law. Whether its creating social media election authority regulations or seminal case law on social media evidence authentication I am proud to say that my home state's elected leaders and judiciary have set the benchmark for the rest of the country to follow regarding social media and the law.

During this year's legislative session, Maryland Senate Bill 433 and House Bill 964 were introduced and if passed they will prohibit employers from requiring employees and applicants from disclosing their social media user names and passwords.

According to the synopsis on the Maryland Legislature's website of Senate Bill 433 it states:

Labor and Employment – User Name and Password Privacy Protection and Exclusions

"FOR the purpose of prohibiting an employer from requesting or requiring that an employee or applicant disclose any user name, password, or other means for accessing a personal account or service through certain electronic communications devices; prohibiting an employer from taking, or threatening to take, certain disciplinary actions for an employee’s refusal to disclose certain password and related information; prohibiting an employer from failing or refusing to hire an applicant as a result of the applicant’s refusal to disclose certain password and related information..."

According to the synopsis on the Maryland Legislature's website of House Bill 964 it states:

Labor and Employment – User Name and Password Privacy Protection

"FOR the purpose of prohibiting an employer from requesting or requiring that an employee or applicant disclose any user name, password, or other means for accessing a personal account or service through certain electronic communications devices; prohibiting an employer from taking, or threatening to take, certain disciplinary actions for an employee’s refusal to disclose certain password and related information; prohibiting an employer from failing or refusing to hire an applicant as a result of the applicant’s refusal to disclose certain password and related information..."

The legislation is a win-win for employers, employees, and taxpayers. The bills are designed to protect employee privacy while still enabling the securities and other regulated industries to comply with their strict compliance regulations. The bottom line is that it is compromise legislation that I believe may be the model for other states and Congress.

I encourage everyone who reads this to reach out to Maryland's legislators to voice support for these bills and to lobby your state legislatures to pass similar legislation. These bills are a win for employers, employees, and taxpayers.

(Full Disclosure: I am not being paid for my work on this legislation. I believe that privacy rights still matter in the Social Media Age and I want to protect employers, employees, and taxpayers from unforeseen legal issues that may arise if these practices continue. Therefore, I have been in constant contact with Maryland Senator Ronald Young and Maryland Delegate Shawn Tarrant to work with them to create a common sense solution to this problem that protects the interests of employers, employees, and taxpayers.)

To learn how social media intersects with the law you may contact me at http://shearlaw.com/attorney_profile.

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

Service of Process Via Social Media and Authentication

noreply@blogger.com (Bradley Shear) — Sun, 26 Feb 2012 04:42:00 +0000

In 2002, a U.S. court approved service of process via email. In 2008, an Australian court first allowed for service of process via Facebook and then earlier this week a UK High Court Judge approved service of process via Facebook. Therefore, service of process via electronic means is gaining acceptance around the world and it may only be a matter of time before a U.S. court will allow for service of process via social media.

Before a U.S. court allows service of process via social media it should understand the authentication issues involved. During my discussion with ABC News about this issue I stated, "[a]uthentication is a major issue since you must be sure that the person with whom you are trying to serve online is the same person offline. You don’t want to have someone’s due process rights infringed upon due to not being properly notified.”

Maryland's highest court came out with a seminal decision almost a year ago discussing authentication of social media evidence. The court understood that just because a social media profile appears to be genuine does not make it so. A person must do their due diligence to ensure that a social media account is the real McCoy.

Therefore, before a U.S. judge allows for service via social media the court must ensure that the person being served online is the same person offline. Authentication must not become an afterthought.

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

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

Dharun Rhavi Case Proves Some Universities Must Rethink Their Social Media Policies

noreply@blogger.com (Bradley Shear) — Wed, 22 Feb 2012 02:40:00 +0000

Some colleges and universities may have social media policies that violate the U.S. Constitution. As I stated on September 26, 2011, the University of North Carolina's social media policy for its student-athletes is very troubling and every single day that UNC has this policy in place the university is increasing its legal liability.

Schools that require their students to turn over their social media user names, and/or account names, and/or passwords, and/or require students to Facebook Friend university employees and/or download monitoring software onto their personal electronic devices to monitor all of their students' online activity are creating a legal minefield they do not understand.

This week the tragic case of Rutgers' student Tyler Clementi is back in the news. For those not familiar with the matter, I first wrote about it on October 6, 2010 and then again on May 1, 2011. Prosecutors allege that Dharun Rhavi's online activity contributed to Tyler Clementi's suicide. In addition, the prosecution has charged Rhavi with tampering with online evidence.

If Rutgers was monitoring the social media activity of Clementi and/or Rhavi and did not act to stop the online activity that is alleged to have contributed to Clementi's death Rutgers may be sued for negligent social media monitoring. However, if Rutgers was only monitoring the social media activity of some of its students but not all of its students Rutgers may be sued for discrimination. Multiple lawyers and risk professionals have already discussed the tremendous liability schools may encounter social media monitoring their students. Therefore, schools must tread very carefully when creating a social media policy.

To learn more about this issue you may contact me at www.shearlaw.com.

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

Maryland Bills Would Protect Students' Social Media Privacy Rights, Schools, and Taxpayers

noreply@blogger.com (Bradley Shear) — Sat, 04 Feb 2012 03:58:00 +0000

The State of Maryland is leading the way nationally to protect the social media privacy rights of students with Senate Bill 434: Institutions of Postsecondary Education-Electronic Account, Service, and Communications Device Privacy Protection and House Bill 310 Public and Non-Public Institutions of Higher Education - Internet and Electronic Privacy Protection.

According to the synopsis of Senate Bill 434 on the Maryland Legislature's website:

Prohibiting an institution of postsecondary education from requiring a student or an applicant for admission to provide access to a personal account or service through an electronic communications device, to disclose any user name, password, or other means for accessing specified accounts or services through an electronic communications device, or to install on specified electronic communications devices software that monitors or tracks electronic content; etc.

According to the synopsis of House Bill 310 on the Maryland Legislature's website:

Prohibiting public and nonpublic institutions of higher education from requiring a student or applicant for admission to provide the academic institution with access to specified Internet sites or electronic accounts through specified electronic devices, to disclose specified password and related information, or to install specified monitoring or tracking software onto specified electronic devices; etc.

These bills still allow students and coaches, school employees, etc... to interact with each other online. This is in contrast to the initial bill that Missouri passed and then revised last year. Since students have the right to engage or not engage with their coaches, school employees, etc... offline they should also have this same right online.

SB 434 and HB 310 would benefit students, applicants, schools, and taxpayers. They would protect a student's and college applicant's privacy rights. The Supreme recently signaled in U.S. v. Jones, that students still have an expectation of privacy in the Social Media Age and that students still have free speech rights while utilizing social media.

Both bills would ensure that colleges and universities do not create a legal duty to monitor all of their students' digital content. Once a school creates a legal duty to monitor all electronic content they may be subject to numerous costly lawsuits. For example, if the University of Virginia was monitoring the electronic content of its former lacrosse players George Huguely and/or Yardley Love and knew or should have known that Huguely may hurt Love then UVA may have had significant legal liability for negligent social media monitoring because it failed to protect Love. If UVA was only monitoring the electronic content of its football and/or basketball players but not its lacrosse players then it may be considered discrimination and UVA may have been sued for not monitoring the electronic content of all of its students.

Taxpayers support the educational system and therefore would benefit from the passage of this legislation because tax dollars should be utilized to educate our children and not be wasted on creating easily avoidable legal liability. In addition, when a school is sued for negligence tax payers may end up footing the bill.

With access comes responsibility. I do not believe that schools that require their students to provide them access to their personal electronic accounts understand the constitutional and legal liability issues involved. If Penn State's legal counsel would have been made aware of the Jerry Sandusky matter at a much earlier stage and was able to inform the athletic department and the administration about the serious legal and financial liability issues involved, Penn State may not be facing their current legal mess and multiple young boys may have been saved from being molested.

As I have stated over and over and over again, educational institutions and society need to fully understand the legal and public policy implications of social media before creating policies that may not only be unconstitutional but also may create tremendous unforeseen legal liability. Too many colleges and universities are already creating a legal quagmire with their social media policies. Now is the time to rectify the situation before schools are left with tremendous legal bills defending unconstitutional policies and tort judgments for negligence.

Unlike China, the United States does not have a Microblog Identification Program that requires its online users to register with the government so it may track its citizens' online speech. Schools that require their students to turn over their social media user names and/or content are acting as though they are based in China and not in the United States. It is time for these schools that are violating the Constitution to stop because our country has a long history of protecting and encouraging free speech from the Federalist Papers to Tinker v. Des Moines Independent Community School District 393 U.S. 503 (1969) to their decisions a few weeks ago to uphold student free speech in the MySpace cases and clearly declare in U.S. v. Jones we still have an expectation of privacy in the Social Media Age.

I encourage everyone who reads this to reach out to Maryland's legislators to voice support for these bills and to lobby your state legislatures to pass similar legislation. These bills are a win for students, schools, and taxpayers.

(Full Disclosure: I am not being paid for my work on this legislation. I believe that the 1st and 4th Amendments still matter in the Social Media Age and I want to protect students, schools, and taxpayers from unforeseen legal issues that may arise if these practices continue. Therefore, I contacted Maryland Senator Ronald Young and Maryland Delegate Shawn Tarrant to notify them about these issues and worked with them to create a common sense solution to this problem that protects the interests of students, schools, and taxpayers.)

To learn more about this issue you may contact me at www.shearlaw.com.

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

Is FC Bayern Munchen Guilty of Like-Gating?

noreply@blogger.com (Bradley Shear) — Sun, 29 Jan 2012 03:30:00 +0000

FC Bayern Munchen recently created a public relations own goal with its social media usage that may have legal consequences. A couple of days ago, Bayern Munchen announced on its website they had agreed to sign a 'spectacular name' and then directed fans to listen to the announcement live on the club's Facebook page. However, in order to listen to the announcement the Facebook user had to first "Like" the page.

There was no announcement of the signing of a "spectacular name". Instead, Bayern Munchen's GM Christian Nerlinger appeared in a video that contained the fans' own Facebook profile photo along with their name on a Bayern Munchen shirt. Many fans were not amused and complained loudly across multiple social media platforms.

If Bayern Munchen was located in the United States the National Advertising Standards Board and/or the Federal Trade Commission may have investigated them for "Like-Gating". Like-Gating occurs when a marketer uses misleading means to inflate the number of Facebook Likes. It appears that Bayern Munchen utilized a misleading advertising message to increase its number of Facebook Likes.

The bottom line is that sports organizations must be very careful when implementing social media marketing campaigns. There are major legal implications with every single social media marketing promotion.

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

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

Supreme Court Signals It Will Protect Students' Social Media Privacy Rights

noreply@blogger.com (Bradley Shear) — Tue, 24 Jan 2012 00:35:00 +0000

The Supreme Court ruled today that the Fourth Amendment still matters in the Social Media Age. In U.S. v. Jones, the court voted 9-0 that a warrant was required to place a GPS tracker onto a car.

This case has wide ranging ramifications in the Social Media Age. If the installation of a GPS tracking device onto a car constitutes a search then the required installation of social media monitoring software onto a student's personal electronic device by a state school also constitutes a search. In addition, the requirement by public schools that their students provide them access to all of their personal electronic content is also a search.

As I have stated over and over again, schools must be very careful when trying to regulate or access a student's personal electronic content. Requiring students to Facebook Friend school administrators, and/or download social media monitoring software onto personal electronic devices and/or requiring students to turn over their social media user names and passwords may create major legal liabilities for academic institutions. Last week, the Supreme Court let stand a couple cases that protected student social media free speech and now this week the court unanimously ruled that there still is an expectation of privacy in the Social Media Age.

As I previously stated on January 18, 2012,

"Unlike China that has a Microblog Identification Program that requires its citizens to register their online user names so the government may track their online posts, the United States strongly believes in freedom of speech. Therefore, schools must be careful when trying to regulate student social media speech.

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

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

Supreme Court Signals It Will Protect Students' Social Media First Amendment Rights

noreply@blogger.com (Bradley Shear) — Thu, 19 Jan 2012 01:41:00 +0000

The Supreme Court recently declined to review three social media free speech cases. According to the Associated Press, the Supreme Court let stand two cases that stated that public schools do not have the right to discipline students for off campus speech that was disseminated via social media. In the third case, the Supreme Court let stand a student's suspension by a West Virginia school that was handed out because the student created a web page that suggested another student had a sexually transmitted disease.

On-campus and off-campus speech has been blurred because of the reach of social media. However, the Supreme Court demonstrated that at this point Tinker v. Des Moines (393 U.S. 503, 1969) is still the law of the land. According to Tinker, students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Furthermore, the Tinker Court stated, "[i]n order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint."

In my Social Media Law Predictions For 2012, I mentioned as my third prediction: "State Legislatures and/or the courts in the United States will address whether students and/or college applicants may be required to turn over their social media user names and passwords and/or install social media monitoring software onto their personal electronic devices in order to attend or play inter-collegiate sports."

As I have previously stated, I believe it is unconstitutional for a public school to require their students to turn over their private social media user names and passwords and/or provide access to their private social media content via "Facebook Friending" a school employee and/or to require that students install social media monitoring software onto their personal electronic devices. Public schools that require their students to provide them access to their private social media content are violating the U.S. Constitution and are creating tremendous legal liability issues that may ultimately harm taxpayers who provide school funding.

Unfortunately, some public schools are listening to social media consultants who are advising them that it is legal and acceptable public policy to require students to provide schools unfettered access to their personal electronic devices and content in order to play intercollegiate sports. It appears that consultants who are advising some public schools on these issues do not understand NCAA social media compliance issues, the law, legal liability issues, public policy, etc...

Unlike China that has a Microblog Identification Program that requires its citizens to register their online user names so the government may track their online posts, the United States strongly believes in freedom of speech. Therefore, schools must be careful when trying to regulate student social media speech.

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

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

Twitter Account Ownership Follow Up

noreply@blogger.com (Bradley Shear) — Fri, 13 Jan 2012 19:45:00 +0000

On December 26, 2011, I discussed the Twitter account ownership lawsuit between PhoneDog and Noah Kravitz. On December 28, 2011, I appeared on Canada's CTV News to discuss the case. Since not all the facts are yet known it is too soon to speculate who owns the account. However, as I previously stated on December 26, 2011, PhoneDog's claim that each Twitter Follower is worth $2.50 appears to be clearly erroneous.

If PhoneDog hires an expert that claims under oath that each Twitter Follower is worth $2.50, I believe it would be easy to dispute this assertion. While some of the lawsuit's exact issues appear novel in a court of law, a case regarding the ownership of a LinkedIn account is currently being litigated. Below is my recent appearance on CTV News where I discuss the PhoneDog matter.

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.

Disconnecting From Social Media in 2012

noreply@blogger.com (Bradley Shear) — Wed, 11 Jan 2012 02:33:00 +0000

Disconnecting from social media may help one realize that there is more to life than Facebook posting, Tweeting, Google plussing, etc... On Wednesday January 4, 2012, I discussed some of these issues with Washington, DC's Fox 5 News morning Co-Anchor Tony Perkins.

Disconnecting from Technology in 2012: MyFoxDC.com

Life is more fun in the real world than in the virtual world.

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

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

Social Media Law Predictions For 2012

noreply@blogger.com (Bradley Shear) — Mon, 09 Jan 2012 04:48:00 +0000

Having foresight and advising clients on how to successfully navigate potential legal risks is what lawyers are paid to do. On January 10, 2011, I made 10 social media law predictions for the year and nine of them have come true; the tenth one appears that it will be realized within the next couple of months. In no particular order, below are some of my social media law predictions for 2012:

1) Social Media account ownership issues will increase.

2) State Legislatures and/or the courts in the United States will address whether employees may be required to turn over their social media user names and passwords and/or install social media monitoring software onto their personal electronic devices so employers may access their employees' private electronic content.

3) State Legislatures and/or the courts in the United States will address whether students and/or college applicants may be required to turn over their social media user names and passwords and/or install social media monitoring software onto their personal electronic devices in order to attend or play inter-collegiate sports.

4) In the United States lawmakers will work to pass bipartisan intellectual property legislation to address social media copyright and trademark issues.

5) Rakofsky v. the Internet will be decided in favor of the Internet.

6) The United States' Federal Trade Commission and the United Kingdom's Advertising Standards Authority will crack down on fraud and misleading social media advertising.

7) Governments around the world will continue to grapple with how to control social media flash mobs, anti-government content, Internet controls, etc...

8) Governing bodies and courts around the world will continue to address social media privacy issues.

9) Social Media usage by political candidates and political causes will greatly increase during the 2012 election cycle and this will lead to increased discussion on updating election compliance laws in the United States and around the world.

10) Lawyers will realize that some of their social media marketing consultants are violating the FTC advertising regulations.

2011 Social Media Law Predictions Update Part II

noreply@blogger.com (Bradley Shear) — Mon, 02 Jan 2012 04:56:00 +0000

On January 10, 2011, I made ten predictions for 2011 regarding social media and the law. Now it is time to evaluate my ability to read the tea leaves in social media and the law. On December 28, 2011, I analyzed the first five of my ten predictions. Four out of my first five predictions have been realized and the one prediction that has not yet come to fruition may be realized within the next couple of months. Below were my second five predictions for 2011.

6. Regulated industries such as banking and finance, pharma, etc...will continue refining their approach to regulating social media usage. During the year, FINRA, the Financial Industry Regulation Authority provided more guidance on how brokers may utilize social media in their professional environment.

7. Federal and state governments will determine what official government social media records need to be retained. During the year, federal agencies created best practices for social media record retention.

8. Homeland Security, the CIA, FBI, NSA, U.S. Armed Forces, etc... will need re-evaluate their social media policies and determine what they allow their employees to post online. During the year, Homeland Security stated that it was reviewing its social media policies.

9. Cyberbulling, Privacy, Defamation, and First Amendment issues will become further intertwined and a rational legal framework will need to be created to address these matters. During the year, Connecticut passed a new cyberullying law and New York also discussed updating its bullying laws to account for the Social Media Age.

10. Social Media Credential Fraud will continue to increase as more people will try to create the perception that they are experts in their professional field due to their social media activity. Fraud in the social media space is a huge problem and during the year the National Advertising Division of the Better Business Bureau came out strongly against Like-Gating which may be another name for Social Media Credential Fraud.

For 2011, 9 of my 10 ten predictions came true and the other prediction not yet realized appears will come to fruition within the next couple of months.

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

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

The New York Times May Be the Most Trusted News Source in the Social Media Age

noreply@blogger.com (Bradley Shear) — Thu, 29 Dec 2011 15:06:00 +0000

The New York Times has been around since 1851 and is regarded as the newspaper of record for the United States. Its reputation is second to none. In the Social Media Age the Gray Lady is still a premier destination for news.

This past week has proven that real world reputation still trumps Facebook Likes, LinkedIn shares, Tweets, etc... If The New York Times reports on something it matters and the world takes notice. For example, on December 25, 2011, the paper reported on a lawsuit that may provide some guidance regarding who owns a Twitter account and what is the value of Twitter follower. Within 24 hours after the article was published the story went viral and news organizations around the world reported on this matter. I appeared on Canada's CTV News Channel last night to discuss the case.

While some may argue that because of Twitter, LinkedIn, Facebook, etc... the story went viral, I disagree. The story went viral because the New York Times reported on it. The proof may be that it was reported online by a major business publication on November 14, 2011 and again on November 17, 2011. The articles were viewed cumulatively approximately 10,000 times online and shared approximately 1000 times via social media. Despite widespread viewing and social media sharing, this story did not go viral until it was covered by the The New York Times.

Reputation is not something that Klout, PeerIndex, etc....are able to accurately measure. Those who believe these companies can measure reputation remind me of the Emperor in the Hans Christian Anderson tale: The Emperor's New Clothes. The bottom line is that reputation is everything and not easily quantifiable.

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.