BILL ANALYSIS Ó
SB 1349
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Date of Hearing: June 26, 2012
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 1349 (Yee) - As Amended: May 2, 2012
As Proposed to be Amended
SENATE VOTE : 28-5
SUBJECT : Social Media: Privacy PROTECTIONS FOR COLLEGE STUDENTS
AND GROUPS
KEY ISSUE : SHOULD POSTSECONDARY EDUCATIONAL INSTITUTIONS BE
PROHIBITED FROM REQUESTING OR REQUIRING STUDENTS, PROSPECTIVE
STUDENTS, OR STUDENT GROUPS TO PROVIDE ACCESS TO THEIR SOCIAL
MEDIA INFORMATION AND THOUGHTS?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This bill, consistent with AB 1844 providing similar privacy
protections for employees and job applicants, seeks to protect
the privacy rights of college students and college applicants by
prohibiting postsecondary educational institutions from
requesting or requiring access to these students' social media
accounts (e.g. Facebook, email and Twitter accounts, etc.) and
the digital media contained in those sites (e.g. photos, videos,
text and email messages). Recent media accounts have reported
that some employers have begun demanding access to the private
social media accounts of employees and job applicants,
generating growing state legislative efforts across the nation
and at the federal level to protect the privacy rights of
employees and students. Supporters argue that this bill, in
conjunction with AB 1844 addressing employee and job applicant
privacy protections, will improve the law's ability to protect
privacy in a new and constantly changing online space where
ever-increasing numbers of Americans share some of their most
private information and thoughts. The bill, as proposed to be
amended, is supported by a host of groups including
organizations seeking to protect Americans' privacy rights, and
it has no known opposition.
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SUMMARY : Seeks to protect the privacy rights of college
students and college student groups by barring public and
private postsecondary educational institutions from requesting
or requiring students, prospective students, or student groups
to provide access to their social media information and
thoughts. Specifically, this bill:
1)Prohibits public and private postsecondary educational
institutions and their employees and representatives from
requiring or requesting a student, prospective student, or
student group to (A) disclose a user name or password for
accessing personal social media; (B) access personal social
media in the presence of a postsecondary educational
institution's employee or representative; or (C) divulge any
personal social media.
2)Contains legislative findings including that quickly evolving
technologies and social media services and websites create new
challenges when seeking to protect the privacy rights of
students at California's postsecondary institutions.
3)Defines "social media" broadly to include but not be limited
to an electronic service or account, or electronic content,
including but not limited to videos or still photographs,
blogs, video blogs, podcasts, instant and text messages,
e-mail, online services or accounts, or Internet Web site
profiles or locations.
4)Provides that nothing in the bill is intended to affect a
public or private postsecondary educational institution's
existing rights and obligations to protect against and
investigate allegations of student misconduct or student
violations of applicable laws and regulations.
5)Provides that a public or private postsecondary educational
institution shall not discharge, discipline or otherwise
retaliate against a student, prospective student, or student
group for choosing not to comply with any request or demand
that violates this section. However it also provides that
nothing in this section shall prohibit a public or private
postsecondary educational institution from terminating or
otherwise taking other adverse action against a student,
prospective student, or student group for any lawful reason.
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6)Provides that private nonprofit and for-profit postsecondary
educational institutions in California shall change their
relevant policies to ensure compliance with the bill.
7)Adds Assemblymember Campos, author of the related measure
dealing with employee and job applicant social media privacy
rights, as the bill's principal co-author.
EXISTING LAW :
1)Requires the University of California Regents, the California
State University 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 those rules and regulations.
(Education Code Sections 66017 and 66300.)
2)Prohibits the UC Regents, the CSU Trustees, and the governing
board of every community college district from making or
enforcing any rule subjecting any student to disciplinary
sanction solely on the basis of conduct that is speech or
other communication, when engaged in outside a campus of those
institutions, protected by the United States or California
constitutions. An enrolled student may pursue a civil action
against these institutions in the event they seek to make or
enforce any such rule. (Education Code Section 94367.)
COMMENTS : As evident in current news coverage on constantly
changing technology and social media services, the world's
exploding "technology revolution" is increasingly presenting
previously unimagined challenges to efforts to protect privacy
rights and expectations. The most recently reported challenge
focuses on the American workplace, where a growing number of
employers are reportedly asking their employees and job
applicants for access to these individuals' social media
accounts. While the desire for all organizations to gain as
much potentially helpful personal information about the
individuals with whom they associate is understandable, this
desire, and the unprecedented technological means to fulfill it,
is leading to increasing efforts by policymakers across the
country and in Congress to enact laws to prevent unreasonable
incursions into individual privacy rights and expectations.
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Consistency With This Year's Employee and Job Applicant Measure :
This bill, as proposed to be amended, no longer addresses the
social media privacy issues pertaining to employees and job
applicants. The author, recognizing those concerns have been
consistently and similarly addressed in AB 1844, has graciously
agreed to defer those issues to that complimentary measure now
being considered in the Senate. Thus this bill now singularly
addresses the privacy issues surrounding higher education. It
targets the privacy rights of California college students,
prospective students and student groups.
While there as yet apparently have not been news reports of
state postsecondary educational institutions asking or demanding
access to their students' social media information, scattered
reports indicate that universities have asked for access to the
social media accounts of their student athletes, allegedly to
ensure compliance with NCAA regulations. Like AB 1844 for
California employees and job applicants, this measure therefore
seeks to make clear the state's postsecondary educational
institutions may not ask or demand access to their students'
(current and prospective) and student groups' social media
information.
No NCAA Compliance Issues : The University of Southern
California (USC), a school that has previously submitted
Facebook "friend requests" to its student athletes in an effort
to monitor the student athletes' social media postings and
behavior, has confirmed to the Committee that the NCAA will not
penalize California schools for complying with this measure.
According to USC, the NCAA requires member schools to monitor
its student athletes' publicly available social media activity
in an effort to catch possible NCAA violations. However the
NCAA does not require California or any other postsecondary
educational institutions to seek to monitor the private personal
information contained in their athletes' non-publicly available
social media. Thus this measure should not present any NCAA
compliance concerns.
"Require and Request ": Measures being considered in other
states seeking to protect privacy in the social media realm
typically seek to bar employers or universities from requiring
social media information from employees and students. This
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measure, by contrast, appropriately seeks to also prohibit
postsecondary educational institutions from requesting that
students provide access to social media. The need for this
broader protection is clear: truly uncompelled consent is
impossible when a power relationship is as unbalanced as that of
a student and his or her university administration, or as that
of an employee or job applicant and his or her employer or
prospective employer. Given that students are often young and
unaware of their rights, a student asked for access to her
social media by a university's investigatory body or application
review board may reasonably worry that declining a request for
social media access will either lead to possible retaliation or
a lack of college acceptance. The practical effect of such a
request may be that a student (as with employees and job
applicants) feels she or he has no real choice but to comply
with any such "requests." This bill protects students from this
sort of pressured or forced consent - consistent with the
identical approach taken in AB 1844 regarding employees and job
applicants that the Committee already approved.
Appropriately Inclusive Definition of Social Media to Cover
Changing Technology: This bill, as proposed to be amended,
appropriately defines social media broadly to include but not be
limited to "an electronic service or account, or electronic
content." This definition includes websites and services on
which digital media is commonly created, shared, and viewed
(e.g. Facebook, Twitter, email accounts), as well as digital
media itself (e.g. photos, video, text messages). It also
allows for changing technology that may include new types of
media content or services that deserve equal privacy protection.
Some observers may initially be tempted to assume that media
stored on an individual's mobile phone, and not posted to or
shared on a website or service, should not properly fall within
the protections of such privacy protection measures. However it
quickly becomes clear that a photo, message, or other form of
electronic content contained on an individual's mobile device
should be deserving of equal -- or perhaps even more -- privacy
protection than a photo, message, or other form of electronic
content posted on an online profile or account that the owner
already understands that specified friends or associates can
view, or perhaps a very broad number of individuals may view.
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Indeed, if anything, a piece of electronic content that a
student (or employee or job applicant) has kept on her or his
mobile device -- and chosen not to share with a bounded universe
of online friends - may arguably be deserving of even greater
privacy protections. Thus this measure appropriately includes
such content in the ambit of its privacy protections.
Appropriate Exceptions in the Measure: This bill appropriately
maintains the ability of postsecondary educational institutions
to protect against, and investigate, potential student
misconduct to the extent they already can and should do so under
current law and regulations.
Pending Related Legislation: As noted, AB 1844 (Campos), as
similarly proposed to be amended to be completely consistent
with the approach in this bill, seeks to prohibit employers from
requiring or requesting social media access from their employees
and job applicants. That complimentary measure passed this
Committee and is awaiting consideration by the Senate Committee
on Labor and Industrial Relations Committee on June 27, 2012.
Legislation recently introduced at the federal level (known as
the "Social Networking Online Protection Act", or SNOPA)
similarly seeks to ban employers from requiring or requesting
access to the private email accounts or private social media
accounts of employees and similarly seeks to bar higher
education institutions and schools from requiring or requesting
access to the private email accounts or private social media
accounts of students.
Maryland has already passed social media privacy legislation
protecting employees, and employee-focused legislation has been
introduced including in New Jersey, Illinois, Massachusetts, New
York, and other states.
ARGUMENTS IN SUPPORT : Reflecting the statements of the bill's
many supporters, who are listed below, are comments by the
Privacy Rights Clearinghouse, a San Diego-based nonprofit
consumer education and advocacy organization, which strongly
supports SB 1349. Commenting on the prior version of the bill
which addressed both employee and student privacy issues, the
group writes in part that:
Many Californians rely upon social networking sites to stay
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connected with friends and family. Most social networking
sites provide granular controls which allow users to decide
which elements remain private, utilizing both privacy and
account settings as well as friendship controls. When an
employer or educational institution requires access to a
social network account by requiring a user name or account
password, or otherwise accesses an account, they gain full
access to that account, thereby defeating those controls.
The effect is no different than reading a personal diary or
emails, or viewing personal home videos.
In fact, providing log-in credentials to an employer or
educational institution may violate the agreement between a
user and the social networking site. For example,
Facebook's Statement of Rights and Responsibilities
prohibits a user from sharing their password or letting
anyone else access their account. Similarly, LinkedIn's
User Agreement requires a user to keep their password
confidential and not permit others to use their account.
REGISTERED SUPPORT / OPPOSITION :
Support (To Prior Version of Measure That Included Employee And
Student Protections)
American Federation of State, County and Municipal Employees
(AFSCME)
Consumer Action
California Employment Lawyers Association
California Faculty Association
California Labor Federation
California Public Interest Research Group (CALPIRG)
Community United Against Violence (CUAV)
California Workforce Association (CWA)
CalSmallBiz
Jewish Vocational Service
National Center for Lesbian Rights
Privacy Rights Clearinghouse
University of California Student Association (UCSA)
Opposition
None on file
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Analysis Prepared by : Drew Liebert and Jonathan Stein / JUD. /
(916) 319-2334
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