BILL ANALYSIS Ó
SENATE COMMITTEE ON EDUCATION
Alan Lowenthal, Chair
2011-2012 Regular Session
BILL NO: SB 1349
AUTHOR: Yee
AMENDED: March 27, 2012
FISCAL COMM: Yes HEARING DATE: April 18, 2012
URGENCY: No CONSULTANT:Kathleen Chavira
NOTE : This bill has been referred to the Committees on
Education and Labor and Industrial Relations. A "do pass"
motion should include referral to the Committee on Labor
and Industrial Relations.
SUBJECT : The Social Media Privacy Act.
SUMMARY
This bill prohibits a public or private postsecondary
educational institution, from requiring or formally
requesting in writing, a student or prospective student to
disclose the user name or account password for a personal
social media account, or to otherwise provide the
institution with access to any content of that account a
public or private employer, and establishes the same
prohibition on public and private employers in regards to
an employee/prospective employee.
BACKGROUND
Current law requires the UC Regents, the CSU Trustees and
the governing board of every community college district to
adopt specific rules and regulations governing student
behavior along with applicable penalties for violation of
the rules and regulations (Education Code § 66017, § 66300)
Current law also authorizes the governing board of a
community college district, the president or an instructor
to suspend a student for "good cause", and prohibits the
removal, suspension, or expulsion of a California Community
College student unless the conduct for which the student is
disciplined is related to college activity or college
attendance. (EC § 76030)
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California State University rules of student conduct are
outlined in the California Code of Regulations (Title 5,
Article 2, Section 41301). These regulations provide that
any student may be expelled, suspended, placed on probation
or given a lesser sanction for one or more causes, as
specified. Conduct that threatens the safety or security
of the campus community or substantially disrupts the
function or operation of the University, whether it occurs
on or off campus, is within the jurisdiction of the Student
Conduct Code. Systemwide procedures for implementing
student disciple are set forth in Executive Order #1043,
which, among other things, authorizes a student conduct
administrator to investigate the matter.
At the UC, enrolled students are subject to university
authority which includes the prerogative of dismissing
students for a number of violations including participation
in a disturbance of the peace or unlawful assembly. If
specified in implementing campus regulations, these
standards of conduct may apply to conduct that occurs off
campus and that would violate student conduct and
discipline policies or regulations had the conduct occurred
on campus.
Current law also prohibits the UC Regents, the CSU Trustees
and local community college district governing boards from
making or enforcing any rule subjecting any student to
disciplinary sanction solely on the basis of conduct that
is speech or other communication that, when engaged in
outside a campus of those institutions, is protected by the
United States or California constitutions. Current law
provides that an enrolled student may pursue civil action
against these institutions, should they make or enforce any
such rule. (EC§94367)
ANALYSIS
This bill establishes the Social Media Privacy Act, under
which it:
1) Prohibits a public or private postsecondary
educational institution from requiring, or from
formally requesting in writing that a student or
prospective student:
a) Disclose the user name or account
password for a personal social media account.
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b) Provide the institution with access to any
content of that account.
2) Prohibits a public or private employer from requiring,
or from formally requesting in writing that an
employee or prospective employee:
a) Disclose the user name or account
password for a personal social media account.
b) Provide the institution with access to any
content of that account.
3) Defines "social media" as an electronic medium where
users may create, share, and view user-generated
content including videos, photographs, blogs, video
blogs, podcasts, instant messages, or web site
profiles or locations.
STAFF COMMENTS
1) Need for the bill . According to the author, there is a
growing trend of colleges and universities who are
requiring user names and passwords to the social media
accounts of students. While social media have provided
a useful avenue for socialization and expression, the
author contends that it has also put employees, job
applicants, and students at risk of having their
privacy blatantly violated by employers and schools.
2) Double referral . This bill prohibits specified
actions by postsecondary educational institutions and
employers. While this Committee appropriately
considers policy which impacts educational
institutions, employment issues are generally under
the purview of the Labor and Industrial Relations
Committee. This bill has been double referred and the
provisions of the bill affecting employers will be
reviewed by the Senate Labor and Industrial Relations
Committee.
Staff further notes that while privacy issues are
generally under the purview of the Judiciary
Committee, this bill is not currently referred to the
Senate Judiciary Committee.
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3) What do postsecondary educational institutions
currently do ? According to the public postsecondary
educational institutions, they do not currently engage
in the activities prohibited by this bill. However,
it appears that some private postsecondary educational
institutions do request that their athlete students
provide information on their social media accounts.
Reportedly this is to ensure that these students
adhere to student athlete ethics codes, as required
under National Collegiate Athletic Association rules.
4) Should postsecondary educational institutions have
some investigative authority ? Current law authorizes
California's public institutions to establish
standards of student conduct to guard against behavior
which may not violate law, but may threaten the safety
and security of the campus community. These can and
do include standards against hazing, cheating, rules
regarding possession of a firearm on campus, misuse of
computer facilities, violations of University
policies, rules or regulations, encouraging,
permitting or assisting another to do any act that
could subject the individual to discipline.
Presumably, private institutions also have codes of
conduct around behaviors that may not violate law, but
could affect the safety and security of their
campuses. Is it reasonable to restrict a postsecondary
educational institution's access to information in an
instance where the institution is investigating
activity which could disrupt campus or students'
safety and security, or otherwise disrupts the
operation or functions of the University? Staff
recommends the bill be amended to address this
concern.
5) Similar legislation . AB 1844 (Campos) is similar to
this bill in that it prohibits an employer from
requiring a prospective employee to disclose a user
name or account password to access a personal social
media account. AB 1844 has been referred to the
Assembly Committees on Judiciary and Labor and
Employment. That bill is currently awaiting hearing
in the Assembly Judiciary Committee.
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SUPPORT
CalSmallBiz
Consumer Action
Jewish Vocational Service, Los Angeles
Privacy Rights Clearinghouse
OPPOSITION
None received.