Social media monitoring of students has sparked a debate among education leaders, policymakers and legal experts. And recent monitoring decisions have added fuel to the fire.
On one hand, social media monitoring of students could help education institutions identify cyberbullying, suicidal posts and illegal behavior. It could also give them opportunities to teach students about responsible social media use that benefits both students and institutions.
On the other hand, monitoring student social media takes time away from educators' regular duties and can lead to more of a disciplinary mindset rather than an educational one. This monitoring could pose legal liabilities, put educators into a role they're not trained for, and generally track what students are saying even though there is no reasonable suspicion of wrongdoing.
Schools and universities are taking different approaches with social media monitoring as they try to balance student safety, the school's image and students' rights.
This year, Glendale School District in California decided to monitor students with the hope that school staff could spot cyberbullying and suicidal posts so they could intervene if needed. In a number of states, legislators have passed laws that ban education institutions from requesting social media log-in information and monitoring posts through a third-party software program.
"Even sometimes when schools feel that there's a good reason to make a new policy, often they end up overreaching with those policies, and I believe it's that sort of overreaching that these laws are intended to stop," said Ted Claypoole, attorney and co-chair of the Cyberspace Privacy and Data Security Subcommittee for the American Bar Association’s Business Law Section. Claypoole also co-authored Protecting Your Internet Identity: Are You Naked Online? with former White House CIO Theresa Payton.
Utah passed a law that went into effect in May, prohibiting postsecondary institutions from asking for student social media account information or punishing them for failing to do so. The law does not prevent them from viewing and acting on public social media posts.
At the time, Utah State University had a social media policy for student athletes that gave university staff and social media monitoring companies the right to access their accounts.
Here is an excerpt of the policy:
I grant full permission for the university and other third party monitors to gain access to the “friends only,” “private,” and similarly designated areas of any social networking account I may have or access. To the extent that any federal, state, or local law that prohibits the Athletic Department from accessing my social networking accounts, I hereby waive any and all such rights and protections.
But after the department sought legal counsel, that policy changed.
"We could feel the tide shifting a little bit that requiring passwords and requiring things like that was not a course of action that we wanted to take moving forward," said Jake Garlock, associate athletic director for compliance at Utah State.
While the university had the policy for a number of years, it only used a third-party monitoring service for one year. After that year, the athletics department stopped using the system because it created unneeded liability in certain situations, Garlock said.
It also took staff time away from regular responsibilities. The staff members who analyzed social media results spent most of their time doing so, he said.
"They found that it was just overburdensome to monitor just because of the way the software is set up," Garlock said. "It has those keywords that it searches for and the key pictures, and there's so many keywords that you get a lot of false positives, and so it became almost a full-time job to monitor."
Instead of using monitoring software, the athletics department has focused on education with its students. Each year, the media relations staff talk with students and basically tell them,"Don't put anything on social media that you wouldn't want your mother to see." That pretty much covers everything, Garlock said. They also have a student athlete orientation class where they spend part of their time talking about good social media practices and reviewing the university's policy.
Social media education is what Kevin DeShazo says he does every day. He founded Fieldhouse Media because most messages to student athletes were, "Don't do this or don't do that." He wanted to show student athletes that social media could help them build a positive image online, not only for themselves, but also for the university.
He speaks to student athletes at colleges around the country, spending an hour with them and an hour with the coaching staff each year to talk about how they can use social media to their advantage. He also shares social media best practices on Twitter and his blog, and answers questions from athletics department staff throughout the year. Shortly after he started his company in 2011, he offered monitoring software that universities could only use in conjunction with his education services.
"I'll tell student athletes, 'We're just monitoring public information that you're putting on the Internet -- the way you're portraying yourself,'" DeShazo said. "We're not here to invade your privacy, we're not here to spy on you, we're here to help you hopefully make better decisions about how you use social media and understand that it's an extremely powerful and public tool, and should be treated that way."
He said that other social media monitoring companies are too invasive because they require usernames, passwords, and third-party app downloads to access private areas of student social media sites. His software only checks the public Twitter posts of student athletes, and if their profiles go private at any time, the software automatically kicks that profile out of its monitoring system, he said.
"It doesn't have to be big brotherish, it doesn't have to be invasive, it can be a good thing if we're just focusing on public information and if we're using it to actually teach them and educate them as opposed to coming at it from trying to discipline," DeShazo said.
Depending on their size, universities spend anywhere from $3,400 to $5,000 for education services and $8,000 to $10,000 for both education and monitoring from Fieldhouse Media. Other companies that provide social media monitoring include Varsity Monitor, Geo Listening and UDiligence.
But at least one lawyer doesn't buy the education argument for social media monitoring and related services.
"They're a waste of money and they're legal liability creators," said Bradley S. Shear, a lawyer who specializes in Internet and social media law and blogs about it.
Varsity Monitor and UDiligence have both been in the news for allegedly monitoring words including "Arab" and monetizing student-athlete pictures respectively. And while Fieldhouse Media says it's not as invasive as other companies, it still may require students to verify their social media username, which at least seven state laws do not allow, Shear said in a blog post.
Along with being a waste of money, they're not a valuable use of time, said Claypoole, the attorney who co-authored a book about privacy online. And they allow universities and schools to do something that police couldn't do in the real world: Search a house without a warrant based on a specific suspicion.
"If for no other reason, it's a waste of time," Claypoole said. "Who and why would you pay to go look at the banal and silly things that most students are talking about online? But more than that, it is in general an infringement of their rights to essentially get a generalized warrant just to go look for wrongdoing, either out here in the physical world or in the electronic world."
When schools and universities decide to monitor student social media use, they may open themselves up to lawsuits, particularly at the K-12 level where students are entitled to a public education, Claypoole said. If students were kicked out of school for their social media use, someone may be able to make a case that their right to public education has been denied. But participating in sports or other extracurricular activities is a privilege, not a right, and is thus treated differently.
In addition, educators who are monitoring student social media are taking on a task that they have not been trained for, such as identifying whether a student is actually serious about committing suicide in his or her posts, Claypoole said.
And if schools are monitoring posts, but don't see or act on a post about cyberbullying or suicide, they may be liable because they have taken on a new duty and obligation to monitor social media, Shear said.
"The last thing you need is the school to have a new obligation and a new duty to become social media police," Shear said.
But schools won't necessarily have a new obligation to monitor social media or be liable in the event of a student death that happened after cyberbullying or suicidal posts online, Claypoole said. It's a tenuous argument that a school would be held liable because it would have to be the actual cause of the death and the proximate cause of it. In the event of a child suicide, the school would have to be actively involved to create liability.
While at least one school district is monitoring student social media, the majority of school districts don't have time to sort through all the posts that go through social media monitoring software, said Sonja Trainor, director of the Council of School Attorneys at the National School Boards Association.
"Most schools I think would prefer not to monitor student activity on social media outside of their official school activities," Trainor said. "There are thousands of student communications per day via social media outside of school-based activities, and there's no way that a school district could keep on top of all of that, nor do they want to be policing students' private lives outside of school."
At the same time, many school district staff members feel like they have a responsibility to monitor student activites that relate to school and affect the school's students, Trainor said. While school districts may take on more obligations and risk by monitoring, they may be willing to take that risk if it means they can catch things like suicide before they happen.
They're in a tough spot because the law does not definitely say how far school districts can go in disciplining students outside of school, Trainor said.
"The law is often very slow to catch up with technology, and laws that were written — whether it's by judges or by legislators — are often too old to have anticipated technological advances that allow for what we're seeing in communication these days," Trainor said. That's why she suggests that school districts talk with an attorney before getting involved in social media monitoring or creating social media policies.
In the landmark case Tinker v. Des Moines, the Supreme Court identified a major test to determine whether a school should get involved: It would have to cause a substantial disruption or reasonable forecast of a disruption to the school.
The Supreme Court has yet to take up any cases recently regarding how far schools can go in disciplining students for something they say outside of school. In fact, the highest court of the land declined to take five or six cases regarding Internet free speech in recent years.
That's left the lower courts to decide for themselves what standard should be met in their jurisdictions based on previous court decisions. But that's led to a situation where the same set of facts results in different verdicts depending on the location of the trial, said Tom Jacobs, founder and moderator of AsktheJudge.info and a retired juvenile judge who spent 23 years on the bench.
"The country really needs some direction when we talk about cyberspace and Internet free speech rights of students," Jacobs said.
Out of roughly 8 to 10,000 petitions, the Supreme Court hears less than 100 cases each year, and it takes about six years for a case to work through the lower courts and up to the Supreme Court, Jacobs said. These drawn-out cases can take a toll on both schools and students, so it's in the best interest of both parties to settle Internet free speech issues outside of the courts whenever possible, he said.
After a 2010 incident with a University of North Carolina football player receiving improper benefits from sports agents, the NCAA Committee on Infractions said the university should have monitored student social media posts. The player tweeted about going to a party in Miami, which sparked an investigation that rocked the university's athletic program. But it did not provide a blanket notice that universities should monitor student athletes on social media.
At Indiana University, the athletic department has decided not to monitor students on social media using a third party company. But some members of the athletics department do follow student athletes, said Julie Cromer, executive associate athletics director and senior woman administrator at Indiana University as well as the president of the National Association for Athletics Compliance.
Rather than monitoring students through software, the university brings in a third-party company to educate student athletes each year. Student athletes learn how they can use social media responsibly while still exercising their right to free speech.
"It seemed much more productive to spend our time being proactive and trying to help them learn how to use social media responsibly and as advocates for their own voice, as opposed to using those resources monitoring and trying to, if you will, clean up on the back end," Cromer said.
Cromer has three pieces of advice for other universities that are making social media policies:
1. Understand the issue before making a social media policy. If you don't have experts on your own campus, seek advice from experts who can explain cultural and legal issues surrounding social media policies.
2. Engage students and listen to what they have to say.
3. Remember what your purpose is as an institution: education.
"We are in the business of educating young people," Cromer said, "and I would encourage them to consider that as an active part of whatever social media policy or activities that they would implement on their own campus."