A new law may have Illinois students give up their social media passwords if suspected of violating school policy, and it’s raising questions about preserving safety and free speech in the face of cyberbullying.
The law in question, which went into effect January 1st, makes any sort of harassment on social media sites a violation of the state’s school code. It allows cyberbullying to be treated with the same weight as any other type of bullying, but nowhere in the bill does it say anything about requiring passwords. When combined with a separate law put in effect in 2014, however, which prohibits requiring students give up their passwords except where there’s “reasonable cause to believe that a student’s account on social networking website contains evidence that the student has violated a school disciplinary rule or policy.”
This rule could apply to any student who was suspected of violating a school rule with their posts, whether it happened on school grounds or no. Leigh Lewis, superintendent of Illinois’ Triad district even told Motherboard that students who refuse to cooperate could face criminal charges.
Against
Facebook made password sharing a violation of its terms of service in 2012, in response to increased reports of employers and schools demanding them. That same year, Maryland became the first state to ban employers asking for social media passwords. Since then at least 28 states have started following suit.
It’s rare to see a law put in place that requires social media users to relinquish their passwords–and so far parents of the students and The ACLU are fighting against it on the basis that the law goes too far. As the Motherboard article states:
That the practice has expanded to schools is highly troubling, according to Kade Crockford, director of Massachusetts’s American Civil Liberties Union. Crockford and the ACLU there are currently championing legislation that would make policies like Illinois’s illegal in the state.
…Crockford suggested that there’s a good chance the Illinois law, or schools’ implementation of it, is unconstitutional. She said that if cyberbullying is bad enough, there are already mechanisms to obtain Facebook messages—law enforcement can obtain a search warrant with a specific criminal complaint, for instance. Finally, the law may be in violation of the Computer Fraud and Abuse Act—Facebook and other social media companies prohibit their users from sharing passwords with unauthorized people, she said.
In favor
With the Internet, there’s already a tension between balancing privacy, free expression, and people’s right not to be harassed, and schools often find themselves smack in the middle of it. It’s there you’ll end up finding laws that can be about as stringent as they come–students often lose privileges just by entering a school–and schools almost never mess around with the safety of their students and faculty members.
Some school districts or states laws have taken tough stances on bullying, and allow school officials to punish acts even when they occur off-campus. If the Triad district had a similar stance, the law equating cyberbullying is the natural extension–and one that’s sorely needed to combat it, writes Naomi Harlin Goodno wrote for the Wake Forest Law Review:
Cyberbullying, unlike off-line bullying, is ubiquitous. Harassing statements and comments made on the Internet can be made on- and off-campus, day and night.[47] The victim’s perception, and perhaps the reality, is that an entire school, neighborhood, and community can be involved in the bullying.[48] With a few keystrokes, the bullying statements can be “circulated far and wide in an instant.”[49] Therefore, antibullying policies that only address on-campus bullying cannot sufficiently address cyberbullying, yet courts and school officials are confused as to how and to what extent schools can regulate off-campus speech.
The Supreme Court is currently debating how seriously people should take online threats, but schools have often been ahead of that curve, such as when the Ninth Circuit ruled that schools could respond to a student’s violent, online, remarks even when made online.
Middle ground?
So what’s the compromise? As the state law sees it, these schools are well within their rights to ask for students passwords, but it’s hard to believe the same effect couldn’t be reached by a cyberbullying victim showing an official a screenshot of any offensive behavior.
Student athletes in colleges are often monitored using software algorithms to save athletic departments embarrassment (and potentially worse consequences for their athletes). Employment law, at least, has established a firm no password rule when it comes to employees on social media, as well as restricting employers from making an employee sign on in front of them. But, as Bridget O’Connell writes on Employee Benefits Blog, that doesn’t mean they’re ruling out social media monitoring completely:
Among other exceptions, most state social media laws allow employers to: access publicly-available social media about employees, restrict employees’ access to social media during work hours and conduct certain types of employment-related investigations that may involve an employee’s social media account(s).
Notably, all four of the recently-enacted laws allow employers to monitor the social media activity of employees when employees access their social media accounts through employer-provided IT systems.
Only time will tell if this Illinois law holds up against complaints, and the increased push for password protection. With any luck, Illinois won’t even need to use it before then. Both sides have their merits so hopefully they can reach a compromise with compromising safety or privacy.