BILL ANALYSIS Ó
SB 1349
Page 1
Date of Hearing: July 3, 2012
ASSEMBLY COMMITTEE ON HIGHER EDUCATION
Marty Block, Chair
SB 1349 (Yee) - As Amended: June 25, 2012
SENATE VOTE : 28-5
SUBJECT : Social media privacy: postsecondary education.
SUMMARY : Prohibits 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)Finds 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.
2)Prohibits public and private postsecondary educational
institutions and their employees and representatives from
requiring or requesting a student, prospective student, or
student group do any of the following:
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.
3)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.
4)Provides that nothing in this section shall:
a) Prohibit a public or private postsecondary educational
institution from terminating or otherwise taking other
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adverse action against a student, prospective student, or
student group for any lawful reason, or,
b) 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 private nonprofit and for-profit postsecondary
educational institutions in California shall change their
relevant policies to ensure compliance with the bill.
6)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.
EXISTING LAW :
1)Requires the University of California (UC) Board of Regents,
the California State University (CSU) Board of Trustees, and
the governing board of every California Community College
(CCC) district to adopt specific rules and regulations
governing student behavior along with applicable penalties for
violation of those rules and regulations. (Education Code §
66017 and 66300)
2)Authorizes the governing board of a CCC district, the
president or an instructor to suspend a student for "good
cause," and prohibits the removal, suspension, or expulsion of
a CCC student unless the conduct for which the student is
disciplined is related to college activity or college
attendance. (EC § 76030)
3)Prohibits the UC Regents, the CSU Trustees, and the governing
board of every CCC 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. (EC
§ 94367)
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4)Institutional policies:
a) CSU rules of student conduct are outlined in the
California Code of Regulations (Title 5, Article 2, Section
41301) and 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 CSU,
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.
b) At 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.
FISCAL EFFECT : Unknown. This bill was referred from the
Senate Appropriations Committee pursuant to Senate Rule 28.8.
COMMENTS : This bill was heard by the Assembly Judiciary
Committee on June 26, where it was approved by a unanimous vote,
after being amended to remove provisions related to employers
and to broaden the definition of social media.
Need for this bill . According to the author, "There is a
growing nationwide trend of colleges and universities who are
requiring user names and passwords to the social media accounts
of students. Student athlete cases have involved requiring that
the student athlete download an application which monitors the
content of their social media account or requires that the
student athlete allow a coach or other designated person access
to the private content of their social media account."
Current policies/practice and NCAA compliance . According to the
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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 student athletes 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 (NCAA) rules. However, the University of Southern
California (USC), which previously submitted Facebook "friend
requests" to its student athletes in an effort to monitor the
student athletes' social media postings and behavior, reports
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 ". As noted in the Assembly Judiciary
Committee analysis, 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 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
approach is consistent with that taken in similar legislation
related to employees and job applicants (see Related legislation
below).
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Social media definition. The Assembly Judiciary Committee
amended the bill to broaden the definition of social media 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.
As the Assembly Judiciary Committee analysis notes, "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.
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."
Public safety exceptions . Institutions retain the ability to
protect against and investigate potential student misconduct to
the extent they already can and should do so under current law
and regulations.
Author's amendment . The author has agreed to accept an
amendment to delete language requiring private institutions from
reporting and certifying their policies to the Bureau for
Private Postsecondary Education, which does not regulate some of
these institutions. Instead the author has agreed to require
these institutions to post their social media privacy policies
on their websites.
Efforts in other states . Legislation recently introduced at the
federal level (known as the "Social Networking Online Protection
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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.
Related legislation . AB 1844 (Campos), pending in the Senate,
would prohibit employers from requiring or requesting social
media access from their employees and job applicants.
REGISTERED SUPPORT / OPPOSITION :
Support
None on file.
Opposition
None on file.
Analysis Prepared by : Sandra Fried / HIGHER ED. / (916)
319-3960