BILL ANALYSIS �
SENATE COMMITTEE ON EDUCATION
Carol Liu, Chair
2013-14 Regular Session
BILL NO: AB 1442
AUTHOR: Gatto
AMENDED: June 5, 2014
FISCAL COMM: No HEARING DATE: June 11, 2014
URGENCY: No CONSULTANT:Lenin Del Castillo
NOTE : This bill has been referred to the Committees on
Education and
Judiciary. A "do pass" motion should include referral to the
Committee
on Judiciary.
SUBJECT : Pupil records: social media.
SUMMARY
This bill requires a local education agency (LEA) 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 about the proposed
program.
BACKGROUND
Current law authorizes schools to suspend or recommend for
expulsion a student who engages in an act of bullying, which is
defined as any severe or pervasive physical or verbal act or
conduct, including communications made in writing or by means
of an electronic act, directed toward one or more students that
has or can be reasonably predicted to have the effect of one or
more of the following:
1) Placing a reasonable student or students in fear of harm
to that student's or those students' person or property.
2) Causing a reasonable student to experience a substantially
detrimental effect on his or her physical or mental
health.
3) Causing a reasonable student to experience substantial
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interference with his or her academic performance.
4) Causing a reasonable student to experience substantial
interference with his or her ability to participate in or
benefit from the services, activities, or privileges
provided by a school. (EC � 48900(r)(1))
Current law defines "electronic act" as the creation and
transmission, originated on or off the schoolsite, by means of
an electronic device, including but not limited to a telephone,
wireless telephone, or other wireless communication device,
computer, or pager, of a communication, including but not
limited to any of the following:
1) A message, text, sounds, or image.
2) A post on a social network website including, but not
limited to:
a) Posting to or creating a burn page, as defined,
created for the purpose of having one or more of the
effects listed above.
b) Creating a credible impersonation of another
actual student, as defined, for the purpose of having
one or more of the effects listed above.
c) Creating a false profile, as defined, for the
purpose of having one or more of the effects listed
above. (EC � 48900(r)(2))
Current law prohibits a student from being suspended or
expelled unless the act is related to a school activity or
school attendance. Schools are specifically authorized to
suspend or expel a student for acts that are related to a
school activity or school attendance that occur at any time,
including but not limited to:
1) While on school grounds.
2) While going to or coming from school.
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3) During the lunch period whether on or off the campus.
4) During, or while going to or coming from, a
school-sponsored activity.
(EC � 48900(s))
Current law prohibits a school district from permitting access
to student records to any person without written parental
consent or pursuant to a judicial order except as set forth in
the federal Family Educational Rights and Privacy Act (FERPA).
Access to those particular records relevant to the legitimate
educational interests of the requester shall be permitted to
specific requesters, including, but not limited to, school
officials, employees of the district, members of a school
attendance review board and officials and employees of other
public schools where the pupil intends to or is enrolled.
(Education Code � 49076)
The federal Family Educational Rights and Privacy Act (FERPA)
is intended to protect the privacy of student education
records. It applies to all schools that receive funds under an
applicable program of the U.S. Department of Education.
Generally, schools must have written permission from the parent
or eligible student in order to release any information from a
student's education record. However, FERPA allows schools to
disclose those records, without consent, to the following
parties or under the following conditions:
1) School officials with legitimate educational interest;
2) Other schools to which a student is transferring;
3) Specified officials for audit or evaluation purposes;
4) Appropriate parties in connection with financial aid to
a student;
5) Organizations conducting certain studies for or on
behalf of the school;
6) Accrediting organizations;
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7) To comply with a judicial order or lawfully issued
subpoena;
8) Appropriate officials in cases of health and safety
emergencies; and
9) State and local authorities, within a juvenile justice
system, pursuant to specific State law.
Schools may disclose, without consent, "directory" information
such as a student's name, address, telephone number, and date
and place of birth. However, schools must tell parents and
eligible students about directory information and allow them a
reasonable amount of time to request that the school not
disclose such information. Schools must also notify parents
and eligible students annually of their rights under FERPA.
(20 U.S.C. Section 1232g; 34 CFR Part 99)
ANALYSIS
This bill:
1) Requires a school district, county office of education,
or charter school (LEA) 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 before adoption of the
program, as specified.
2) Requires an LEA that adopts a program to do all of the
following:
a) Gather or maintain only information that was
made publicly accessible, which shall not include
either of the following:
i) Information that the LEA knows or has
reason to believe was reposted or otherwise made
publicly accessible by another party without the
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express consent of the original author.
ii) Any secondary information, including,
but not limited to, geolocation information,
derived from content posted to social media,
unless that secondary information was
intentionally made publicly accessible or unless
the LEA has obtained consent from an eligible
pupil or parent or guardian.
b) Provide a pupil with access to any personal
information about the pupil gathered or maintained by
the school district, county office of education, or
charter school (LEA) that was obtained from social
media, and an opportunity to correct or delete
information that was gathered or maintained in
violation, as specified.
c) 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 LEA,
whichever occurs first.
d) Notify each parent or guardian of a pupil
subject to the program that the pupils personal
information is being gathered from social media and
that any information subject to the bill's provisions
that is maintained in the LEA's records with regard to
the pupil shall be destroyed, as specified. Provides
that the notification contain explanations regarding
the process by which a pupil or a pupils parent may
access and request removal of personal information, as
specified.
1) Provides that if the LEA contracts with a third party to
gather personal information from social media on an
enrolled pupil, the contract shall do all of the
following:
a) Prohibit the third party from using the
information for its own purposes.
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b) Prohibit the third party from selling or sharing
the information with any person or entity other than
the LEA.
c) 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 LEA, whichever occurs
first.
2) Defines eligible pupil as any pupil 18 years of age or
older.
3) Defines school purposes as those that customarily take
place at the direction of a school, teacher, school
district, county office of education, or charter school or
aid in the administration of school activities, including,
but not limited to, instruction in the classroom or at
home, administrative activities, or collaboration between
pupils, school personnel, and parents or guardians.
4) Defines social media as 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.
Provides that social media shall not include an electronic
service or account used exclusively for school purposes.
5) Defines publicly accessible as anything posted on social
media or any other Internet Web site that is accessible to
the general public. Provides that publicly accessible
does not include anything posted on social media or any
other Internet Web site that is only accessible to a
restricted group of persons.
STAFF COMMENTS
1) Need for the bill . According to the author's office,
the number of social media platforms that students have
access to such as Facebook, Twitter, and Instagram has
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never been greater. And while social media outlets
provide numerous opportunities for networking, keeping in
touch, information sharing and self-expression, they also
deliver platforms for questionable behavior such as
cyber-bullying, hate speech, and self-destructive
language. In recent years, students, parents, and the
general public have had to confront the increasing
incidence of cyber-bullying or the use of electronic media
to harass, intimidate, or terrorize another student. As a
result, existing law now allows a student to be suspended
or recommended for expulsion for bullying by means of an
electronic act.
Some school districts have also elected to monitor the
social media activities of their pupils as a means for
early discovery and intervention to prevent incidences of
cyber-bullying from escalating to something more serious
such as violence or personal injury. Specifically, the
Glendale Unified School District contracted with a social
media monitoring service that mines publicly available
information from students' accounts that might suggest the
need for an intervention, such as suicidal thoughts,
bullying, or vandalism and provides daily reports to
school administrators.
According to the author's office, some students and
parents feel that this data collection constitutes an
inappropriate intrusion into their off campus lives. In
addition, they indicate that pictures and texts posted by
still-young and impressionable students have the potential
to be stored by private companies, only to be released
later in ways that could haunt them in their adult lives.
This bill is intended to address those concerns by
imposing restrictions on the use of information obtained
from social media by local education agencies and their
contractors.
2) New era of digital technology . Recent advances in
technology have changed the landscape of education in
schools and have resulted in the expansion of student
data. School districts are increasingly integrating the
use of computers and tablets in the classroom to instantly
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deliver personalized content, employ virtual forums for
interacting with other students and teachers, and utilize
other interactive technologies to enhance student
learning. These technologies, which may be provided
directly by school districts and through the use of
private contractors and subcontractors, have the potential
to transform the classroom and learning processes. Online
forums are used to assist teachers with sharing lesson
plans and web-based applications help teachers with
customized learning experiences for individual students.
With access to personal student level education records,
these new technologies raise questions concerning the
security of this information.
3) Protecting student privacy . Because there may be
potential risks to student privacy resulting from the use
of technology for student learning, there have been
numerous pieces of legislation seeking to protect student
personal information. Last year, SB 568 (Steinberg),
Chapter 336, Statutes of 2013, was enacted and prohibits
website operators from sending advertisements to minors
for products that they were not old enough to legally use
or purchase. Additionally, as a follow up to SB 568 from
2013, SB 1177 (Steinberg) currently seeks to prohibit K-12
online educational sites from compiling, sharing, or
disclosing student information. Another bill, AB 1584
(Buchanan) proposes certain student privacy assurances
that school districts must include in any contracts they
enter into with contractors regarding the digital
management of pupil records.
There may very well be benefits to social media
monitoring, especially if it is found to be an effective
tool of intervention and allows a school to identify
instances where a student is at risk of harming him or
herself or others. However, it is unclear if these
benefits outweigh any privacy risks that they may pose,
especially if students and parents are unaware that such
social monitoring is taking place. It is important to
note that this bill would not prevent school districts
from contracting with a third-party for social media
monitoring services. It would require school districts to
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notify students and their parents if they are considering
such a program. As a point of clarification that the
author may wish to address as the bill moves forward, if
there is public comment from a student, parent, or the
community objecting to the school district's proposed use
of a social media monitoring program, what course of
action would a school district be required to take, if
any? Are the objections binding? In other words, could
the bill be interpreted to prohibit a school district from
establishing a program if objections are raised?
4) Related and prior legislation .
Senate Bill 1177 (Steinberg) prohibits K-12 online
educational sites, services, and applications from
compiling, sharing, or disclosing student personal
information and from facilitating, marketing, or
advertising to K-12 students. This bill is pending before
the Assembly Education Committee.
AB 1584 (Buchanan) requires a local educational agency
that elects to enter into a contract with a third-party
for the purpose of providing digital management of pupil
records to include specific assurances in those contracts
that are intended to protect the privacy of student
information. This bill is also scheduled to be heard by
the Senate Education Committee on June 11, 2014.
SUPPORT
American Civil Liberties Union
Privacy Rights Clearinghouse
OPPOSITION
Capitol Resource Institute
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