Lena Engel,

Attorney

Texas CTO 2015 Summer Clinic

June 17, 2015

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88% of teens have seen someone be mean to another person on a social networking site.

41% of teens have had a negative experience as a result of

using a social networking site. 39% of teens and tweens think their online activity is

private from everyone, including parents. 67% of teenagers say they know how to hide what they’re

doing online from their parents. Among 9-17 year olds, more time is spent on social

networks than on TV.

http://www.guardchild.com/social-media-statistics-2/, February 27, 2015.

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#1 Compliance with Privacy Laws #2 Compliance with CIPA #3 Vendor Terms and Conditions #4 Responding to Student Use of Social Media On and Off Campus #5 Responding to Employee Use of Social Media On and Off Campus

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Family Educational Rights and Privacy Act (FERPA) ◦ Governs use and dissemination of student education

records and personally identifiable information ◦ Beware of Directory Information opt out and personal use

Protection of Pupil Rights Amendment (PPRA) ◦ Provides parents certain rights regarding conduct of

surveys and collection and use of student information for marketing purposes

◦ Requires notice and opt out

Children’s Online Privacy Protection Act (COPPA) ◦ Governs online collection of personal information from

children under 13 ◦ Requires parental consent and opt out

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Texas Education Code Sec. 26.009. ◦ An employee of a school district must obtain the written consent

of a child's parent before the employee may . . . make or authorize the making of a videotape of a child or record or authorize the recording of a child's voice

Not required to obtain consent if the videotape or voice recording is to be used only for: ◦ purposes of safety, including the maintenance of order and

discipline in common areas of the school or on school buses; ◦ a purpose related to a cocurricular or extracurricular activity; ◦ a purpose related to regular classroom instruction; or ◦ media coverage of the school

Disclosure still subject to FERPA

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Texas Penal Code § 33.07(a) ◦ A person commits an offense if he uses the name

or persona of another person to: Create a web page on a commercial social networking

site or other internet website; or

Post or send one or more messages on or through a commercial social networking site or other internet website, other than on or through an electronic mail program or message board program;

Without obtaining the other person’s consent; and

With the intent to harm, defraud, or intimidate, or threaten any person

◦ Penalty: 3rd degree felony

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Districts must certify compliance with CIPA when applying for E-Rate funding

Requires development and enforcement of an Internet Safety Policy

Applies generally to District’s use of technology, but particularly challenging for District-sponsored/sanctioned use of social media

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Internet Safety Policy must provide for (among other things): ◦ Monitoring the online activities of minors

◦ Implementing technology protection measures that

protect against access by adults and minors to visual depictions that are obscene, child pornography or, with respect to use of computers with Internet access by minors, harmful to minors (i.e., block or filter access)

◦ Educating minors about appropriate online behavior, including interacting with other individuals on social networking websites and in chat rooms, cyberbullying awareness, and response

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Limit use to District-issued devices)

Encourage use of separate District/professional accounts

Appoint administrator to join groups (e.g., Like, Follow), or otherwise monitor

Work with provider to gain access/monitor

Train employees and students on proper use ◦ Cyberbullying ◦ Appropriate content

Inform parents about social media use and accounts

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Avoid requesting access to, or otherwise attempting to control, students’ or employees’ personal accounts

Do not search students’ cell phones without reasonable suspicion

Beware of social media monitoring companies

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Ownership of Data De-identified Data vs. Metadata vs. PII Vendor Access, Use, and Disclosure ◦ PII – District purposes only

Beware of Data Mining Access to Data for Monitoring, Records Retention,

and Open Records Requests Transfer or Deletion of Data Upon

Assignment/Termination

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Usage-Based or Fluid Costs

Venue/Governing Law

Exhibits Referenced by Website ◦ Terms of Use ◦ Privacy Policy

Confidentiality of Vendor Information

Limitation of Liability/Infringement Indemnity

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• Speech that Causes a Substantial Disruption Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503 (1969)

• Lewd or Vulgar Expression Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986)

• School-Sponsored Speech Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988)

• Speech Promoting Illegal Drug Use Morse v. Frederick, 127 S. Ct. 2618 (2007)

When Can ON-Campus Speech Be Regulated?

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• True Threats Morse v. Frederick, 127 S. Ct. 2618 (2007)

• Special Danger Ponce v. Socorro Indep. Sch. Dist., 508 F.3d 765 (5th Cir. 2007)

• Speech that Causes a Substantial Disruption Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503 (1969)

When Can OFF-Campus Speech Be Regulated?

. . . Maybe.

The Tinker standard appears to be the proper test for off-campus student speech now:

Does it materially or substantially disrupt the work and discipline of the public school?

BUT WAIT . . .

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Investigate improper off-campus speech immediately and document any evidence of disruption (or reasonably forecasted disruption) to the school environment

If it is a true threat or a Columbine-style reference, act immediately and report to the police

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When Can Employee Speech Be Regulated?

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1. Is the employee speaking pursuant to

official duties? • If so, no protection

• If not, go to Question 2

2. Is it a matter of public concern?

• If not, no protection

• If so, balance interests of the district as

an employer and the employee as a citizen (i.e., First Amendment rights)

Pickering v. Bd. of Educ., 391 U.S. 563 (1969)

When Can Employee Speech Be Regulated?

Safesmartsocial.com

Commonsensemedia.org

Connectsafely.org

Safekids.com

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Lena Engel

5718 Westheimer Road, Suite 1200

Houston, Texas 77057

Telephone: 713.960.6000

lengel@rmgllp.com

Thank you for your time and attention!

THE FOREGOING PRESENTATION WAS CREATED BY ROGERS, MORRIS & GROVER, LLP. THIS

PRESENTATION IS INTENDED TO BE USED SOLELY FOR GENERAL INFORMATION PURPOSES AND IS NOT TO BE

REGARDED AS LEGAL ADVICE. IF SPECIFIC LEGAL ADVICE IS SOUGHT, PLEASE CONSULT AN ATTORNEY.

Houston Office: 5718 Westheimer Road, Suite 1200, Houston, TX 77057

Telephone: 713.960.6000

Austin Office: 5920 W. William Cannon Dr., Bldg. 1, Ste. 250, Austin, TX 78749

Telephone: 512.354.1050

Website: www.rmgllp.com