Now that the 2013 legislative session in Hawai‘i is in full swing, let’s take a look at what new measures are in the pipeline to regulate Internet activity. A chart of relevant information about each bill is available here. Here’s a summary of the Internet-related proposals working their way through the legislature.
Social Media and Internet Account Passwords
A set of bills (SB207 and HB713) proposes to join other states in banning employers from asking employees or job applicants to disclose the passwords to their personal social media accounts. Another set of proposals (HB1104 and HB1023) would extend the ban to educational institutions and their students or prospective students.
Three bills (HB1226, SB525, and HB397) would require the board of education to adopt various policies and programs to combat cyberbullying in public and charter schools.
Apparently responding to incidents in which teachers and students conducted inappropriate relationships online, HB678 would allow a teacher in a public or charter school to engage in electronic communication with a student (including cell phone calls) only on Department of Education networks and systems.
SB325 would require businesses to implement a comprehensive, written policy and procedure to prevent identity theft and train all employees in implementation of the same.
HB462 would establish a statewide cybersecurity council to identify and assess critical computer infrastructure, identify cybersecurity “best practices,” recommend incentives for voluntary adoption of such best practices, evaluate the efficacy of such practices, and report annually to the legislature.
We’ll be tracking these bills, reporting on their status periodically, and posting revisions to the chart. Stay tuned!
Sutton v. Bailey, 2012 WL 5990291 (8th Cir. Dec. 3, 2012), is the latest reminder that private Facebook postings can lead to professional consequences. Sutton was hired as a Funeral Science Director at Arkansas State University–Mountain Home for the 2010-11 academic year. His employment contract provided that he could be terminated at any time “for adequate cause.” A month after Sutton got hired (but apparently before he began teaching), he posted on his Facebook page: “Toby Sutton hopes this teaching gig works out. Guess I shouldn’t have cheated through mortuary school and faked people out. Crap!”
University officials somehow learned about the post and asked to meet with Sutton about it. At the meeting, the university’s vice-chancellor (Bailey) and director of instruction (Thomas) confronted Sutton with the post. He admitted to making the post. Bailey then told Sutton that he was fired. Sutton asked if it mattered that the statement was a joke, and that he posted the statement before he began teaching. Baily replied “no” to both questions. Sutton then received an Employee Counseling Statement form stating that he was being dismissed for an incident of “Academic Fraud and unprofessional conduct.” The “Supervisor Statement” portion of the form explained: “Mr. Sutton posted material on Facebook indicating he had ‘cheated’ his way through mortuary school. There are multiple other class related issues.” Bailey told Sutton he had an opportunity to make a statement before signing the form. Sutton declined and signed the form without further comment. Sutton later sued Bailey and Thomas in their individual capacities, alleging that he was deprived of procedural due process in connection with his firing.
The bulk of the Eighth Circuit Court of Appeals’ opinion addressed the defendants’ defense of qualified immunity, which the court found to have merit.
LegalTXT Lesson: This case has two important, if obvious, takeaways. First, employees need to remember that whatever content they share on their private social media networks could come back to haunt them professionally. Employees need to be reminded constantly that social media blurs the line between personal and public, private and professional.
Second, Sutton answers a question I often get asked by employers: Can employees be disciplined or even terminated for their private social media conduct? The answer is yes. (For another example, read my post on the Careflite case, which recently settled). There are limits, of course (and the NLRB Acting General Counsel has waxed long about many of them), but there are circumstances in which it is proper to discipline or terminate an employee for his or her private social media activity. Now, it would help greatly if an employer sets standards of employee conduct clearly identifying the kinds of social media conduct that could lead to adverse employment action. We don’t know what was in the employee handbook of the university in this case, but a rule that could’ve come in handy is one instructing faculty members not to endorse or make light of academic dishonesty.
A university may discipline a student for social media posts that violate academic rules based on the ethical code of the profession the student is studying to become part of — Tatro v. University of Minnesota, 2012 WL 2328002 (Minn. June 20, 2012)
When a student sues under the First Amendment for being disciplined by the school for his or her expression, a court will likely apply the line of cases stemming from Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), or Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988). Tinker ruled that a school district may limit or discipline student expression if school officials reasonably conclude that the expression will “materially and substantially disrupt the work and discipline of the school.” Hazelwood said that a school may exercise editorial control over the style and content of student speech in school-sponsored activities if their actions are “reasonably related to legitimate pedagogical concerns.” But what if the student expression isn’t disruptive per se, and isn’t sponsored by the school, but contrary to the professional code of ethics the students are being trained to follow? It isn’t unconstitutional for the school to discipline the student for such expression, the Supreme Court of Minnesota recently said.
Amanda Tatro worked on human cadavers as part of the anatomy lab work for the University of Minnesota’s mortuary science program in which she was enrolled. Tatro agreed to abide by various rules as a condition of being granted access to the cadavers, including the code of professional conduct governing mortuary science students and anatomy lab rules. The lab rules prohibited “blogging” about the anatomy lab or cadaver dissection. The lab students were told during orientation that blogging included Facebook and Twitter.
Tatro posted a series of comments on her Facebook page about the human cadaver she was assigned to. As a result of the comments, the university imposed sanctions against Tatro, including a failing grade in the lab course and placement on probation for the remainder of her undergraduate career. Tatro sued the school for violations of her constitutional right to free speech.
The court first considered the Tinker and Hazelwood lines of cases, but concluded that neither applied. The university disciplined Tatro not because her Facebook posts created a substantial disruption on campus or within the mortuary science program, but because the posts violated established rules that require respect, discretion, and confidentiality in connection with work on human cadavers. The Tinker analysis was therefore inapplicable. Hazelwood did not apply either because no one would reasonably consider the Facebook posts as speech that the university sponsored or promote.
The discipline was constitutional for a different reason, the court said. Dignity and respect for the human cadaver is an established part of the professional conduct standards for the mortuary science profession. The academic rules that Tatro violated were narrowly tailored to the objective of promoting such professional standards. The rules permitted “respectful and discreet” discussion of cadaver dissection outside the lab in a private setting, but prohibited blogging about cadaver dissection or the anatomy lab, which could reach a wide audience. Tatro’s Facebook posts, for example, could be seen by the hundreds of people who were “friends” with Tatro on Facebook, as well as “friends of friends.”
LegalTXT Lesson: Academic programs that prepare students to work in a particular profession may be able to limit off-campus student expression that violates the ethical standards of that profession. The limits must still be “narrowly tailored” to the interest in training students to uphold professional standards, however, which means blanket bans on student expression often will not pass muster.