BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
AB 1442 (Gatto)
As Amended June 5, 2014
Hearing Date: June 24, 2014
Fiscal: No
Urgency: No
TH
SUBJECT
Pupil Records: Social Media
DESCRIPTION
This bill would authorize a school district, county office of
education, or charter school to adopt a program to gather or
maintain personal information from social media on enrolled
pupils only if certain specified conditions are met.
BACKGROUND
Late last year, the Glendale Unified School District contracted
with a company called Geo Listening to search and examine the
public social media postings of middle and high school students
as part of an effort to combat, among other things, online
bullying. According to media reports, the "Los Angeles school
district is now looking at the public postings on social media
by middle and high school students, searching for possible
violence, drug use, bullying, truancy and suicidal threats," and
is "paying $40,500 to a firm to monitor and report on 14,000
middle and high school students' posts on Twitter, Facebook and
other social media for one year." (Martinez, California School
District Hires Firm to Monitor Students' Social Media (Sep. 18,
2013)
(as of Jun. 19, 2014).) According to another report:
[t]he company's computers scour an untold number of public
posts by students on blogs, Facebook, Twitter and Instagram,
for example. Analysts are alerted to terms that suggest
suicidal thoughts, bullying, vandalism and even the use of
(more)
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obscenities, among other things. When they find posts they
think should spur an intervention or anything that violates
schools' student codes of conduct, the company alerts the
campus. (Ceasar, Glendale District Says Social Media
Monitoring is for Student Safety (Sep. 14, 2013) <
http://articles.latimes.com/2013/sep/14/local/la-me-glendale-so
cial-media-20130915> (as of Jun. 19, 2014).)
While monitoring the public postings of students' social media
accounts may alert school authorities to potentially dangerous
situations involving their students, a number of stakeholders
have expressed concern that monitoring arrangements such as this
undermine the privacy interests of school students. According
to one stakeholder:
This is the government essentially hiring a contractor to
stalk the social media of the kids . . . When the government
-- and public schools are part of the government -- engages in
any kind of line-crossing and to actually go and gather
information about people away from school, that crosses a line
. . . People say that's not private: It's public on Facebook.
I say that's just semantics. The question is what is the
school doing? It's not stumbling into students -- like a
teacher running across a student on the street. This is the
school sending someone to watch them. Martinez, California
School District Hires Firm to Monitor Students' Social Media
(Sep. 18, 2013)
(as of Jun. 19, 2014).)
This bill would authorize a school district, county office of
education, or charter school (school entity) to adopt a program
to gather or maintain personal information from social media on
enrolled pupils only if the following conditions are met:
pupils and their parents or guardians are informed about the
program and given an opportunity to comment at a regularly
scheduled public meeting before the program is implemented;
the program gathers or maintains only publicly accessible
information, which does not include information known to have
been made publicly accessible without the consent of the
original author or secondary information derived from social
media content (such as geo location information), as
specified;
the program offers pupils with access to any personal
information gathered or maintained through the program, as
well as with an opportunity to correct or delete information
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improperly gathered;
the program requires the destruction of personal information
gathered from social media within one year after a pupil turns
18 years old or is no longer enrolled in the school entity
operating the program;
the program notifies each parent or guardian that their
pupil's personal information is being gathered from social
media and maintained in the school entity's records;
the program notifies each parent or guardian of the process by
which gathered or maintained information may be reviewed,
corrected, or deleted by a pupil, parent, or guardian; and
the program, if contracting with a third party for the
collection and maintenance of personal information, prohibits
by contract the third party from using the information for its
own purposes or from selling or sharing the information with
any person or entity other than the school entity, and
requires the third party to destroy the information
immediately upon satisfying the terms of the contract or
within one year after a pupil turns 18 years old or is no
longer enrolled in the school entity operating the program.
CHANGES TO EXISTING LAW
Existing law provides that, among other rights, all people have
an inalienable right to pursue and obtain privacy. (Cal.
Const., art. I, Sec. 1.)
Existing case law permits a person to bring an action in tort
for an invasion of privacy and provides that in order to state a
claim for violation of the constitutional right to privacy, a
plaintiff must establish the following three elements: (1) a
legally protected privacy interest; (2) a reasonable expectation
of privacy in the circumstances; and (3) conduct by the
defendant that constitutes a serious invasion of privacy. (Hill
v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1.)
Existing law recognizes four types of activities considered to
be an invasion of privacy, giving rise to civil liability
including the public disclosure of private facts. (Id.)
Existing case law provides that there is no reasonable
expectation of privacy in information posted on an Internet Web
site. The information is no longer a "private fact" that can be
protected from public disclosure. (Moreno v. Hanford Sentinel
(2009) 172 Cal.App.4th 1125.)
Existing federal law requires an operator of an Internet Web
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site or online service directed to a child, as defined, or an
operator of an Internet Web site or online service that has
actual knowledge that it is collecting personal information from
a child to provide notice of what information is being collected
and how that information is being used, and to give the parents
of the child the opportunity to refuse to permit the operator's
further collection of information from the child. (15 U.S.C.
Sec. 6502.)
This bill would require a school district, county office of
education, or charter school that considers a program to gather
or maintain in its records any personal information obtained
from social media of any enrolled pupil to notify pupils and
their parents or guardians about the proposed program and
provide an opportunity for public comment at a regularly
scheduled public meeting of the governing board of the school
district or county office of education, or governing body of the
charter school, as applicable, before the adoption of the
program.
This bill would require a school district, county office of
education, or charter school (school entity) that adopts such a
program to do all of the following:
gather or maintain only information that was made publicly
accessible, which shall not include: information that the
school entity knows or has reason to believe was reposted or
otherwise made publicly accessible by another party without
the express consent of the original author; or secondary
information derived from content posted to social media,
unless that secondary information was intentionally made
publicly accessible or unless the school entity has obtained
consent from an eligible pupil or a parent or guardian;
provide a pupil with access to any personal information about
the pupil gathered or maintained by the school entity that was
obtained from social media, and an opportunity to correct or
delete information that was gathered or maintained improperly,
as specified; and
destroy personal information gathered from social media and
maintained in its records within one year after a pupil turns
18 years of age or within one year after the pupil is no
longer enrolled in the school entity, whichever occurs first.
This bill would provide that a school entity that adopts such a
program shall also notify each parent or guardian of a pupil
subject to the program that the pupil's personal information is
being gathered from social media and that any such information
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maintained in the school entity's records with regard to the
pupil shall be destroyed, as specified. The required
notification shall also:
provide an explanation of the process by which a pupil or a
pupil's parent or guardian may access the pupil's records for
examination of the personal information gathered or maintained
under the program; and
provide an explanation of the process by which a pupil or a
pupil's parent or guardian may request the removal of
inaccurate personal information or make corrections to
personal information gathered or maintained under the program.
This bill would require, if the school entity contracts with a
third party to gather personal information from social media on
an enrolled pupil, the relevant contract terms to:
prohibit the third party from using the information for its
own purposes;
prohibit the third party from selling or sharing the
information with any person or entity other than the school
entity; and
require the third party to destroy the information immediately
upon satisfying the terms of the contract, within one year
after a pupil turns 18 years of age, or within one year after
the pupil is no longer enrolled in the school entity,
whichever occurs first.
This bill would define "social media" to mean "an electronic
service or account, or electronic content, including, but not
limited to, videos, still photographs, blogs, video blogs,
podcasts, instant and text messages, email, online services or
accounts, or Internet Web site profiles or locations." This
bill would specify that "social media" shall not include an
electronic service or account used exclusively for school
purposes, as provided.
COMMENT
1. Stated need for the bill
The author writes:
[This] bill was introduced in response to concerns expressed
by students and parents of the Glendale Unified School
District after they discovered that the district had
contracted, using taxpayer dollars, a vendor to monitor
students' social media accounts and compile information about
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them. Though the district assured students and parents that
the monitoring was being done to track and prevent any illegal
or harmful behavior, such as cyberbullying, violent crimes, or
possible suicides, many felt that this intrusion delved too
far into the off-campus lives of students. Furthermore,
neither students nor parents were notified that the data
collection [would] take place nor were they given an
opportunity to voice their concerns.
AB 1442 sets privacy and notification standards for [school
entities] that collect or contract to collect information on
or pertaining to their students from social media websites.
The bill makes several additions to existing law, for which
there are no existing guidelines on the matter. First, it
requires that parents be notified before their children's
personal information is compiled, and it requires that parents
and students be given the opportunity to comment at a publicly
noticed board or governing body meeting. Second, it directs
that any personal social media information collected by a
local education agency or a third-party contractor be
destroyed within one year of the child leaving the district,
or one year after turning 18 years old-whichever is first.
Finally, it requires that parents or students be given the
opportunity to examine any information gathered from social
media about them upon request.
This measure would still allow school districts to take such
preventative safety measures. However, it would provide
parents reasonable warning and an assurance to students that
any potentially embarrassing or harmful information gathered
about students in their formative years would be properly
destroyed after its need had passed and not "come back to
haunt them" in their adult lives.
2. Expectation of privacy
Staff notes that the right to privacy is a fundamental right
protected by Section 1 of Article I of the Constitution of
California. This bill builds upon that fundamental right by
requiring school entities and their contractors to disclose
details about programs that gather and maintain a student's
personal information from social media. Aside from requiring
school entities to hold public meetings before launching such
programs, this bill would limit permissible collection to
include only that personal information which is "publicly
accessible," and would require school entities to inform
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students, parents, and guardians how they can review, correct,
or delete gathered information. Additionally, this bill would
require school entities and their contractors to destroy
gathered information after a certain period of time, and would
explicitly prohibit contracted third parties from selling or
sharing the information with any entity other than the
contracting school entity.
While this bill empowers students, parents, and guardians to
exercise some control over information collected from social
media, it does not afford them the opportunity to opt out of a
school's social media gathering program. The American Civil
Liberties Union (ACLU), writing in support, states:
We recommend requiring consent from either parents or students
prior to social media information being complied or an
opportunity for parents or students to opt out of the
collection of a student's social media information. In its
current form, AB 1442 requires parents [to] be notified that
their child's personal information is being gathered from
social media, but the bill does not allow parents to refuse to
have their child's personal information be gathered and
maintained by the school district.
To address this concern, the Committee may wish to consider the
following amendment which gives parents and students an
opportunity to opt-out of a school entity's social media
information collecting program:
Suggested Amendment :
On page 3, between lines 30 and 31, insert: (2) Provide a
pupil, as well as each pupil's parent or guardian, with an
opportunity to opt out of participation in the program.
3. Information that is "publicly accessible"
A key privacy element of this bill is its restriction on
allowing school entities or their contractors to collect
personal information from social media sources that is not
"publicly accessible." This bill would define publicly
accessible to mean anything posted on social media or any other
Internet Web site that is accessible to the general public, not
including anything posted on social media or any other Internet
Web site that is only accessible to a restricted group of
persons. Unfortunately, this restriction may not prevent a
school entity's social media information gathering program from
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collecting sensitive data inadvertently made public.
Studies have shown that unfamiliarity with particular social
media products and confusion about how information will be
displayed across a social network have led to the unwanted
dissemination of personal information. One such study by
Columbia University found that 93.8 percent of participants
revealed information that they intended to keep private, and
that 84.6 percent of participants were hiding information that
they actually wanted to share. (Madejski, et. al., The Failure
of Online Social Network Privacy Settings (2011) (as of April 20,
2013).) As recent as 2010, 83 percent of adults surveyed
nationwide said they were more concerned about online privacy
today than they were five years ago. (Common Sense Media Poll
(as of April 20, 2013).) When asked about the
privacy of children online, the same survey found that 92
percent of parents were concerned that their children shared too
much information online, and three quarters of parents (75
percent) didn't think social networking sites did a good job of
protecting children's online privacy. (Id.)
This bill, as currently drafted, allows students, parents, and
guardians to delete or remove personal information that was
either gathered or maintained in violation of the bill's
restrictions, or that is factually inaccurate. Given the
likelihood that a student could inadvertently post sensitive
information he or she meant to keep private, the Committee may
wish to consider an amendment that would allow any personal
information to be removed or deleted, whether or not it is
inaccurate or was improperly gathered.
Suggested Amendments :
On page 3, lines 35 and 36, strike "information that was
gathered or maintained in violation of paragraph (1)," and
insert: "such information"
On page 4, line 17, strike "inaccurate"
Equipping consumers with a statutory mechanism to require the
removal of personal information from a social media gathering
program would further the Legislature's longstanding policy of
providing effective laws to protect individual privacy.
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4. Clarifying the class of subject information
Supporters of this bill note that the bill's current text
appears to interchangeably use the words "information" and
"personal information" without clearly distinguishing between
these two concepts. The bill does not appear to use
"information" or "personal information" in a restrictive sense,
other than to refer to that class of information that is
obtained from social media that is posted by or refers to an
enrolled pupil. To attain a higher degree of clarity, the
Committee may wish to strike the word "personal" when used in
conjunction with "information" from the bill, which would result
in the bill's provisions applying uniformly to all information
gathered or maintained from social media.
Suggested Amendments :
Strike "personal" from the following locations: page 3, lines
6, 31, and 37; page 4, lines 4, 14, 17, 18, and 21
5. Other stakeholder concerns
Stakeholders have also expressed a desire for the author to
expand this bill in a number of ways. The ACLU and Privacy
Rights Clearinghouse recommend that the author adopt explicit
guidelines setting out the allowable purposes for which
information gathered from social media may be used. The Capitol
Resource Institute, writing in opposition, recommends that the
author adopt the following additional safeguards:
prohibit any action from being taken against a student who has
posted something on social media that is constitutionally
protected free speech; and
explicitly exclude "emails," "texts," and "instant messages"
from the definition of "social media."
Support : American Civil Liberties Union of California;
California Federation of Teachers; Privacy Rights Clearinghouse
Opposition : Capitol Resources Institute
HISTORY
Source : Author
Related Pending Legislation :
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SB 501 (Corbett) would require social networking Web sites to
remove the personal information of a registered user, upon
request, and permit a parent or legal guardian of a registered
user who identifies himself or herself as under 18 years of age
to request the social networking Internet Web sites to remove
personal identifying information of their children. This bill
is in the Assembly Arts, Entertainment, Sports, Tourism, and
Internet Media Committee.
SB 1177 (Steinberg) would prohibit an operator of an Internet
Web site, online service, online application, or mobile
application designed and marketed for K-12 school purposes from
using, sharing, disclosing, or compiling specified information
about a K-12 student for any purpose other than the K-12 school
purpose or for maintaining, developing, and improving the
integrity and effectiveness of the site, service, or
application. This bill is in the Assembly Arts, Entertainment,
Sports, Tourism, and Internet Media Committee.
AB 1584 (Buchanan) would authorize a local educational agency to
enter into a contract with a third party to provide services for
the digital storage, management, and retrieval of pupil records,
provided that the contract includes specific provisions about
the use, ownership, and control of the pupil records. This bill
is in the Senate Judiciary Committee.
Prior Legislation :
SB 568 (Steinberg, Ch. 336, Stats. 2013) prohibits an operator
of an Internet Web site, online service, online application, or
mobile application, from marketing or advertising a product or
service to a minor if the minor cannot legally purchase the
product or participate in the service in the State of
California. This bill also prohibits an operator from using,
disclosing, or compiling, or allowing a third party to knowingly
use, disclose, or compile, the personal information of a minor
for the purpose of marketing goods or services that minors
cannot legally purchase or engage in the State of California.
AB 1291 (Lowenthal, 2013) would have created the Right to Know
act of 2013, repealing and reorganizing certain provisions of
existing law pertaining to the disclosure of a consumer's
personal information. This bill died in the Assembly Judiciary
Committee.
SB 761 (Lowenthal, 2012) would have required the Attorney
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General, by July 1, 2012, to adopt regulations that would
require online businesses to provide California consumers with a
method for the consumer to opt out of the collection or use of
his or her information by the business. This bill died in the
Senate Appropriations Committee.
SB 242 (Corbett, 2011) would have prohibited a social networking
Internet Web site from displaying the home address or telephone
number, in specified text fields, of a registered user who
identifies himself or herself as under 18 years of age. This
bill failed passage on the Senate floor.
SB 1361 (Corbett, 2010) would have prohibited a social
networking Internet Web site, as defined, from displaying, to
the public or other registered users, the home address or
telephone number of a registered user of that Internet Web site
who is under 18 years of age, as provided. This bill failed
passage in the Assembly Arts, Entertainment, Sports, Tourism,
and Internet Media Committee.
SB 632 (Davis, 2009) would have required a social networking
Internet Web site to provide a disclosure to users that an image
which is uploaded onto the Web site is capable of being copied,
without consent, by persons who view the image, or copied in
violation of the privacy policy, terms of use, or other policy
of the site. This bill was vetoed.
ACR 106 (Nava, 2008) would have urged user-generated content Web
sites to work with the Safety Technical Task Force and law
enforcement to reduce the use of those Web sites for purposes of
criminal behavior. This resolution died on the Assembly Floor.
Prior Vote :
Senate Education Committee (Ayes 7, Noes 0)
Assembly Floor (Ayes 78, Noes 0)
Assembly Committee on Education (Ayes 7, Noes 0)
Assembly Committee on Judiciary (Ayes 9, Noes 0)
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