This document summarizes key statistics regarding teenagers' use of social media and outlines important topics relating to school districts' compliance with privacy laws and appropriate responses to student and employee use of social media. Some key statistics included that 88% of teens have seen online bullying, 41% have had negative social media experiences, and teens spend more time on social networks than watching TV. The document then covered topics like FERPA, PPRA, COPPA and responding to student and employee social media use both on and off campus.

1. Lena Engel,
Attorney
Texas CTO 2015 Summer Clinic
June 17, 2015

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3.  88% of teens have seen someone be mean to another
person on a social networking site.
 41% of teens have had a negative experience as a result of
using a social networking site.
 39% of teens and tweens think their online activity is
private from everyone, including parents.
 67% of teenagers say they know how to hide what they’re
doing online from their parents.
 Among 9-17 year olds, more time is spent on social
networks than on TV.
http://www.guardchild.com/social-media-statistics-2/, February 27, 2015.
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4. #1 Compliance with Privacy Laws
#2 Compliance with CIPA
#3 Vendor Terms and Conditions
#4 Responding to Student Use of Social Media
On and Off Campus
#5 Responding to Employee Use of Social
Media On and Off Campus
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6.  Family Educational Rights and Privacy Act (FERPA)
◦ Governs use and dissemination of student education
records and personally identifiable information
◦ Beware of Directory Information opt out and personal use
 Protection of Pupil Rights Amendment (PPRA)
◦ Provides parents certain rights regarding conduct of
surveys and collection and use of student information for
marketing purposes
◦ Requires notice and opt out
 Children’s Online Privacy Protection Act (COPPA)
◦ Governs online collection of personal information from
children under 13
◦ Requires parental consent and opt out
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7.  Texas Education Code Sec. 26.009.
◦ An employee of a school district must obtain the written consent
of a child's parent before the employee may . . . make or authorize
the making of a videotape of a child or record or authorize the
recording of a child's voice
 Not required to obtain consent if the videotape or voice
recording is to be used only for:
◦ purposes of safety, including the maintenance of order and
discipline in common areas of the school or on school buses;
◦ a purpose related to a cocurricular or extracurricular activity;
◦ a purpose related to regular classroom instruction; or
◦ media coverage of the school
 Disclosure still subject to FERPA
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8.  Texas Penal Code § 33.07(a)
◦ A person commits an offense if he uses the name
or persona of another person to:
 Create a web page on a commercial social networking
site or other internet website; or
 Post or send one or more messages on or through a
commercial social networking site or other internet
website, other than on or through an electronic mail
program or message board program;
 Without obtaining the other person’s consent; and
 With the intent to harm, defraud, or intimidate, or
threaten any person
◦ Penalty: 3rd degree felony
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10.  Districts must certify compliance with CIPA
when applying for E-Rate funding
 Requires development and enforcement of an
Internet Safety Policy
 Applies generally to District’s use of
technology, but particularly challenging for
District-sponsored/sanctioned use of social
media
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11.  Internet Safety Policy must provide for (among
other things):
◦ Monitoring the online activities of minors
◦ Implementing technology protection measures that
protect against access by adults and minors to visual
depictions that are obscene, child pornography or, with
respect to use of computers with Internet access by
minors, harmful to minors (i.e., block or filter access)
◦ Educating minors about appropriate online behavior,
including interacting with other individuals on social
networking websites and in chat rooms, cyberbullying
awareness, and response
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12.  Limit use to District-issued devices)
 Encourage use of separate District/professional
accounts
 Appoint administrator to join groups (e.g., Like,
Follow), or otherwise monitor
 Work with provider to gain access/monitor
 Train employees and students on proper use
◦ Cyberbullying
◦ Appropriate content
 Inform parents about social media use and accounts
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13.  Avoid requesting access to, or otherwise
attempting to control, students’ or
employees’ personal accounts
 Do not search students’ cell phones without
reasonable suspicion
 Beware of social media monitoring companies
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15.  Ownership of Data
 De-identified Data vs. Metadata vs. PII
 Vendor Access, Use, and Disclosure
◦ PII – District purposes only
 Beware of Data Mining
 Access to Data for Monitoring, Records Retention,
and Open Records Requests
 Transfer or Deletion of Data Upon
Assignment/Termination
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16.  Usage-Based or Fluid Costs
 Venue/Governing Law
 Exhibits Referenced by Website
◦ Terms of Use
◦ Privacy Policy
 Confidentiality of Vendor Information
 Limitation of Liability/Infringement Indemnity
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• Speech that Causes a Substantial Disruption
Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503 (1969)
• Lewd or Vulgar Expression
Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986)
• School-Sponsored Speech
Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988)
• Speech Promoting Illegal Drug Use
Morse v. Frederick, 127 S. Ct. 2618 (2007)
When Can ON-Campus Speech Be
Regulated?

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• True Threats
Morse v. Frederick, 127 S. Ct. 2618 (2007)
• Special Danger
Ponce v. Socorro Indep. Sch. Dist., 508 F.3d 765 (5th Cir. 2007)
• Speech that Causes a Substantial Disruption
Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503 (1969)
When Can OFF-Campus Speech Be
Regulated?

20. . . . Maybe.
The Tinker standard appears to be the
proper test for off-campus student speech
now:
 Does it materially or substantially disrupt the
work and discipline of the public school?
BUT WAIT . . .
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21.  Investigate improper off-campus speech
immediately and document any evidence of
disruption (or reasonably forecasted
disruption) to the school environment
 If it is a true threat or a Columbine-style
reference, act immediately and report to the
police
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When Can Employee Speech Be
Regulated?

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1. Is the employee speaking pursuant to
official duties?
• If so, no protection
• If not, go to Question 2
2. Is it a matter of public concern?
• If not, no protection
• If so, balance interests of the district as
an employer and the employee as a
citizen (i.e., First Amendment rights)
Pickering v. Bd. of Educ., 391 U.S. 563 (1969)
When Can Employee Speech Be
Regulated?

25.  Safesmartsocial.com
 Commonsensemedia.org
 Connectsafely.org
 Safekids.com
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26. Lena Engel
5718 Westheimer Road, Suite 1200
Houston, Texas 77057
Telephone: 713.960.6000
lengel@rmgllp.com
Thank you for your time and attention!

27. THE FOREGOING PRESENTATION WAS CREATED BY
ROGERS, MORRIS & GROVER, LLP. THIS
PRESENTATION IS INTENDED TO BE USED SOLELY FOR
GENERAL INFORMATION PURPOSES AND IS NOT TO BE
REGARDED AS LEGAL ADVICE. IF SPECIFIC LEGAL
ADVICE IS SOUGHT, PLEASE CONSULT AN ATTORNEY.
Houston Office: 5718 Westheimer Road, Suite 1200, Houston, TX 77057
Telephone: 713.960.6000
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Telephone: 512.354.1050
Website: www.rmgllp.com