Legal issues regarding network filtering and monitoring John M. Rasmussen KASB Attorney
Facebook Launched in February of 2004 2nd most trafficked internet site in U.S. and the world 41.6% of U.S. citizens have a Facebook page 2.6 billion minutes spent on Facebook daily throughout the world 600 million active users 700,000 photographs uploaded monthly
MySpace Primarily a younger crowd (under 18 years of age) 106 Million Members 230,000 new profiles each day ―Having a MySpace page is like decorating your locker‖
Twitter One of the fastest growing social networks Micro-blog or super-texting Communicates through exchange of 140-character messages
Twitter (con’t) Now has 190 million users tweeting 65 million times per day Is the 3rd highest ranking social networking site 1500 percent growth in users
YouTube Ranked No. 4 among the top U.S. Web sites visited Online video-sharing 150 million videos 100 million videos viewed per day Average age of video uploader is 26.57
Blogs Online journal High rate of anonymity 133 million blogs 175,000 new blogs created daily 350 million blog readers (77% of all internet users)
Online safety By some estimates 50,000 sexual predators online at any moment 89% of sexual solicitations occur in chatrooms and instant messages 1 in 5 children has been solicited for sex 25% of those solicited never tell a parent From NSBA National Affiliate Webinar- 3/12/07
Student Free Speech Rights Standards Tinker Substantial disruption or material interference (or reasonably forecast) Fraser Lewd, indecent or patently offensive (at school) Kuhlmeier School sponsored: Legitimate pedagogical concerns Frederick (2006) Schools may regulate speech promoting drug use (Court found it was a school activity)
Statutory Authority: K.S.A. 72-8901 Subsection (b) provides authority to discipline for conduct which substantially disrupts, impedes or interferes with the operation of any public school. Subsection (d) provides authority to discipline for off-campus conduct if the conduct constitutes the commission of a felony.
K.S.A. 72-8256 (2008) Adds cyberbullying to the definition of bullying under state law Defines cyberbullying as: bullying by use of any electronic communication device through means including, but not limited to email, instant messaging, text messages, blogs, mobile phones, pagers, online games and websites (b) The board of education of each school district shall adopt a policy to prohibit bullying on or while utilizing school property, in a school vehicle or at a school-sponsored activity or event.
Regulation of Student Speech (Internet Use) At School School can place educationally based restrictions on student speech that is sponsored by the school or that is necessary to maintain an appropriate school climate This legal standard applies to student speech via the district internet system or via cell phones used at school
Sexting The practice of sending or posting sexually suggestive text messages and images including nude or semi-nude photographs via cell phones or over the internet. Recent survey: 20% of teens have admitted to sexting Pornography or prank? Challenging issue because of the criminal component and the fact that kids can be placed on sex-offender lists that will affect them for the rest of their lives
Sexting 4% of cell-owning teens ages 12-17 say they have sent sexually suggestive nude or nearly nude images of themselves to someone else via text messaging. 15% of cell-owning teens ages 12-17 say they have received sexually suggestive nude or nearly nude images of themselves from someone else via text messaging. Older teens are much more likely to send and receive these images; 8% of 17-year-olds with cell phones have sent an image by text and 30% have received a nude or nearly nude image on their phone Teens who pay their own phone bills are more likely to send ―sexts‖ 17% of those who pay the entire bill have sent sexts 3% who do not pay or pay only a portion have sent sexts Teens and Sexting, Pew Internet & American Life Project (December 15, 2009), available at pewinternet.org
Sexting Not much case law In some states, prosecutors have tried to stop it by charging teens who send and receive pictures Miller v. Skumanick, Pennsylvania: three teens charged with child pornography, ACLU filed suit to block charges; 3rd circuit affirmed no legal basis to bring charges A.H. v. State, 949 So.2d 234 (Florida 2007) Court held it didn’t matter that the photos were texted and emailed only to each other; still child pornography Vermont: legislature considering a bill to legalize the consensual exchange of graphic images between two people ages 13 to 18
Sexting Legislative response In 2009, 6 states enacted legislation addressing sexting In 2010, 12 states introduced legislation Issues Misdemeanor/felony? Affirmative defenses Registering as a sex offender
Sexting Options for schools Define it as an infraction of school rules Discipline – think Fraser, Tinker Contact parents Training – raise awareness among students and parents on dangers of sexting The strange case of Assistant Principal Ting-Yi Oei Charged with possession of child pornography after obtaining image as part of an investigation
Sexting When discovered: Tell parents of all students involved Report sexting to the police Minimize exposure to child pornography charges; isolate the evidence Discipline students involved Prevent harassment and bullying of students involved in sexting
School authority to ban cell phones Price v. New York City Board of Education (2007) (2nd Circuit) Banning cell phones does not interfere with fundamental rights of parents. Lacey v. Farley (2007) (6th Circuit) No constitutional right to posses cell phone in school.
Authority to confiscate student’s cell phone Koch v. Adams, (2010 Arkansas Supreme Court) Policy called for cell phone to be retained for two weeks Parents alleged wrongful taking of cell phone, conversion, and unlawful taking of private property without due process Court held no violation of constitutional rights
Searches of Cell Phones All searches must comply fully with the ―reasonableness standard‖ set forth in New Jersey v. T.L.O, 469 U.S. 328 (1985) Search is justified at its inception Scope of search is reasonably related to the circumstances justifying the search at its inception Klump v. Nazareth Area School District, 425 F.Supp.2d 622 (E.D.Pa. 2006) Calling nine students from directory not a justified search
Follow up to Sexting case ACLU filed suit on behalf of 19 year old former student against Tunkhannock Area High School (Pennsylvania) School officials invaded her privacy and violated her free speech rights when they confiscated her cell phone and found semi-nude photos stored on the phone and turned the phone over to authorities. ―There was no reason to go looking for these pictures on her phone, and unless you have a very good reason, you can’t go through someone’s private things. We think it is a grave violation of her privacy.‖
Off-Campus Student Websites Courts apply the Tinker standard Tension between constitutional rights of students and school’s need for order School must show actual or foreseeable disruption—not just distasteful or rude content Threats of violence? Accessed at school?
Off-Campus Online Speech Case law is limited and provides unclear guidance Must be a substantial and material threat of disruption on campus Evidence of disruption? Phone calls, emails, etc. School should try and establish a school ―nexus‖ to bring the case under the educationally based restrictions standard
Recent case: No disruption J.C. v. Beverly Hills Unified School District, 2010 WL 1914215 (C.D. Cal.) Student recorded 4 minute and thirty-six second video of her friends talking about a classmate in unkind and sexual terms and posted it on YouTube Suspended for two days Court noted any speech regardless of its geographic origin, which causes or is foreseeably likely to cause a substantial of school activities can be regulated by the school However, in this case, court found insufficient evidence of disruption ―Substantial must equate to something more than the ordinary personality conflicts among students‖
Student on teacher- Facebook In Evans v. Bayer, (S.D. Fla., Feb. 12, 2010), the district court ruled high school student who was suspended and removed from AP course because she created off-campus a group on Facebook dedicated to criticizing a particular teacher, has stated a valid claim for violation of her free speech rights. School failed to meet Tinker standard
Federal Laws that relate to filtering The Children’s Internet Protection Act (CIPAA)- mandates basic content filtering The Family Educational Rights and Privacy Act (FERPA) – protects the privacy of student records State laws K.S.A. 72-6214 – must comply with FERPA K.S.A. 72-5386 – can’t withhold records The Children’s Online Privacy Protection Act (COPPA)
The Children’s Internet Protection Act (CIPA) Enacted by Congress in 2000 as part of the Consolidated Appropriations Act to address concerns about access to offensive content over the Internet on school and library computers. CIPA imposes certain types of requirements on any school or library that receives funding for Internet access or internal connections from the E-rate program.
What does CIPA require? Schools and libraries subject to CIPA may not receive the discounts offered by the E-rate program unless they certify that they have an Internet safety policy that includes technology protection measures.
CIPA requirements The protection measures must block or filter Internet access to pictures that are: (a) obscene, (b) child pornography, or (c) harmful to minors Before adopting this Internet safety policy, schools and libraries must provide reasonable notice and hold at least one public hearing or meeting to address the proposal.
CIPA Requirements In addition to the three types of material that must be blocked, CIPA explicitly permits schools and libraries to block any content deemed inappropriate for minors by local standards.
CIPA requirements Schools subject to CIPA are required to adopt and enforce a policy to monitor online activities of minors. The Internet safety policy must address: (a) access by minors to inappropriate matter on the Internet; (b) the safety and security of minors when using electronic mail, chat rooms, and other forms of direct electronic communications; (c) unauthorized access, including so-called ―hacking,‖ and other unlawful activities by minors online; (d) unauthorized disclosure, use, and dissemination of personal information regarding minors; and (e) measures restricting minors’ access to materials harmful to them.
CIPA requirements Schools and libraries are required to certify that they have their safety policies and technology in place before receiving E-rate funding. An authorized person may disable the blocking or filtering measure during any use by an adult to enable access for bona fide research or other lawful purposes.
KASB Policies IIBGA Children’s Internet Protection Act IIBG Computer Use KBA District or School Web Sites
Challenges to CIPA United States v. American Library Association (2003) The U.S. Supreme Court held that CIPA does not violate the First Amendment, even though it may block some legitimate sites, because libraries may disable the filters for adult patrons upon request.
Summary of CIPA Requires ―technology protection measure‖ for visual depictions only (that are deemed obscene, child pornography, or harmful to minors). Whether a school filters any content besides the visual depictions defined in the law is a local decision. FCC regulations give schools and libraries considerable latitude on how to implement the mandates in the law. ―We conclude that local authorities are best situated to choose which technology measures will be most appropriate for their relevant communities.‖
COPPA The Act applies to websites and online services operated for commercial purposes that are either directed to children under 13 or have actual knowledge that children under 13 are providing information online. Most recognized non-profit organizations are exempt from most of the requirements of COPA.
Complying with COPA Website operators must use reasonable procedures to ensure they are dealing with the child’s parent. These procedures include: Obtaining a signed form from the parent; Accepting and verifying a credit card number; Taking calls from parents on a toll-free telephone number staffed by trained personnel; Email accompanied by digital signature; Email accompanied by a PIN or password obtained through one of the verification methods above.
The Family Educational Rights and Privacy Act FERPA – gives parents access to educational records and prevents the school from disclosing records without permission of the parent or authorization by law. Educational records are defined as those records, files, documents or other materials that contain information directly related to a student and which are maintained by the school. Information stored by electronic means is included.
FERPA Annual notice Directory Information- may be released without the consent of the parents Photos on school websites? Penalties – loss of federal funds KASB policy - JR
Acceptable Use Policies Define scope and purpose of e-mail and/or Internet access Require efficient, ethical, and legal utilization of school district resources Usage of Internet & E-mail Privilege, not a right Responsibilities in return—breach of which can result in loss of privileges, disciplinary action, or both Right to monitor; no expectation of privacy KASB policy IIBG
E-Discovery Federal rules of civil procedure amended in 2006. ―Litigation hold‖ -when you receive notice of litigation, you are to required to preserve all evidence, including electronic evidence, that could pertain to the case. Only required if you have a ―reasonable anticipation of litigation.‖ If you have a regular data destruction cycle, you have to stop your data destruction process immediately. You must keep information until litigation is finished.
E-Discovery Organizations need not retain all electronic information ever generated or received. Destruction is an acceptable stage in the information life cycle; an organization may destroy or delete electronic information when there is no continuing value or need to retain it. Systematic deletion of electronic information is not synonymous with evidence spoliation. Absent a legal requirement, organizations may adopt programs that routinely delete certain recorded communications, such as e-mail, instant messaging, text messaging and voice-mail.
Common Tech Discipline Topics Accessing Pornography Sending inappropriate e-mail Sexual or Racial Harassment Obscene content Attacking board, administration, or other employees Digital evidence of inappropriate relationships with students Personal use while on the clock Email, social networking, or blogging Using district system to solicit personal business Political activity Unauthorized disclosure of student information Inappropriate texts and sexting Employees’ social networking pages or blogs
Searches of Computers Pornography Cases Other Cases Clear policy or warning O’Connor workplace search rules followed Reasonable at its inception Reasonable in scope
Thygeson v. U.S. Bancorp, 2004 WL 2066746 (D. Or. 2004). An employee who was fired for misuse of his employers computer system brought action against the employer alleging invasion of privacy based on the employers monitoring of his personal e-mail and internet access. The court denied the claim. ―[W]hen, as here, an employer accesses its own computer network and has an explicit policy banning personal use of office computers and permitting monitoring, an employee has no reasonable expectation of privacy .‖
Employer Control of Computers ‖They didn’t have to be reasonable conditions; but the abuse of access to workplace computers is so common (workers being prone to use them as media of gossip, titillation and other entertainment and distraction) that reserving a right of inspection is so far from being unreasonable that the failure to do so might well be thought irresponsible.‖ Muick v. Glenayre Electronics, 280 F.3d 741 (7th Cir. 2002).
Employee Blogs The law offers no special protection for blogging. Public Employee Speech Is it part of the employee’s duties? NOT PROTECTED: When public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. Garcetti v. Ceballos, 547 U.S. 410 (2006) Is it on a matter of public concern? Balance of interests – the Pickering factors
Controls on Blogging Nickolas v. Fletcher, 2007 WL 1035012 (E.D. Ky. 2007) Court denied employee’s injunction in a case challenging the state’s decision to prohibit state employees from accessing blogs from state-owned computers. Nickolas is a ―blogger‖ whose website focuses on Kentucky politics and is critical of the Fletcher administration. As a result of the disputed state policy, state employees can no longer access Nickolass website and other websites from state-owned computers. Nickolas alleges that the States policy infringes upon his rights under both the First Amendment and the Equal Protection Clause of the United States Constitution. The State allows employees to use the Internet for work-related purposes and for limited personal use so long as it does not interfere with their official duties. Policy change came after survey showed personal use was leading to employee inefficiency at work.
Teacher blogging A North Carolina teacher was dismissed for unprofessional conduct based on Facebook postings ―I am teaching in the most ghetto school in Charlotte.‖ Stated one of her hobbies was ―drinking.‖ Never put in electronic form anything that you wouldn’t want viewed by a million people, including your colleagues, students, and supervisors – and your mother.
Suggestions for teachers with social networking sites If you have a personal account, restrict viewing by students – Don’t list students as ―friends‖ Do not place pictures of your students on your personal site – invites a higher level of scrutiny Would you want the contents of your social networking site or your blog featured on the six o’clock news? Teachers are held to a high standard for behavior, judgment, and professionalism
Policy on Facebook Model policy The Superintendent and the School Principals will annually remind staff members and orient new staff members concerning the importance of maintaining proper decorum in the on-line, digital world as well as in person. Employees must conduct themselves in ways that do not distract from or disrupt the educational process. The orientation and reminders will give special emphasis to: improper fraternization with students using Facebook and similar internet sites or social networks;
Sample Facebook policy (cont.) inappropriateness of posting items with sexual content; inappropriateness of posting items exhibiting or advocating use of drugs and alcohol; monitoring and penalties for improper use of district computers and technology; the possibility of penalties, including dismissal from employment, for failure to exercise good judgment in on-line conduct. The Superintendent or designees may periodically conduct internet searches to see if teachers have posted inappropriate materials on-line.
Other states – new laws Louisiana – a new state law requires all Louisiana districts to implement policies requiring documentation of every electronic interaction between teachers and students through a nonschool- issued device, such as personal cellphone or email account. Parents also have the option of forbidding any communication between teachers and their child through personal electronic devices. Policy does not apply to one-way communication to groups of students regarding classroom assignments, etc. Louisiana Association of Educators – ―see it as a necessary evil.‖
Social Media in schools? Need to teach ―digital citizenship.‖ NING Educational friendly social network 46 million users 100% private controlled networks Does not require local storage Free to K-12 schools