New Jersey Enacts New Social Media Privacy Bill Affecting Student Athletes

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In December 2012, New Jersey Governor Chris Christie signed into law “A-2879” which will have a direct impact on an the accessibility of student-athlete social media accounts (what the act terms “social-networking websites”) by employees at institutions of higher learning. The New Jersey bill prohibits any public or private institution of higher education in New Jersey from the following: (read the complete act by clicking here).

  • Requiring a student or applicant for admission to provide or disclose any username or password, or in any way provide access to a personal account or service through an electronic communications device;
  • Inquiring as to whether a student or applicant has an account or profile on a social networking website;
  • Barring a student or applicant from participating in activities sanctioned by the institution as a result of the student or applicant refusing to provide or disclose social media information;
  • Discriminating or retaliating against students/applicants who refuse to provide or disclose any user name, password or other means for access to a personal account of a social networking website;

The act states that upon violation of any above-referenced provision, an aggrieved student or applicant may institute a civil action within one year from the date of the alleged violation. For aggrieved students, the court may award injunctive relief; compensatory and consequential damages; and/or reasonable attorneys’ fees and court costs.

A-2789 is a harbinger of recent leanings toward protecting the privacy rights of student-athletes in realm of social media. In the past several months, California, Michigan and Delaware have enacted similar laws. Meanwhile, a district court in Minnesota has held that public schools that require access to their students’ password protected social media accounts like Facebook are violating their students’ First and Fourth Amendment rights. In R.S. ex rel. S.S. v. Minnewaska Area Dist. 2012 U.S. Dist. LEXIS 126257, No. 12-588 (Sept. 6, 2012, D. Ct. MN).

Notably, there is nothing in any of these new laws which gives anyone a “privacy right” in messages which are unsecured. It is not a violation for a school to view material that has been voluntarily posted for public display. Constitutional buzz-words like “freedom of speech” or “invasion of privacy” resonate whenever we hear about coerced disclosure of what is presumptively private and/or sensitive information. But a salient issue to these new bills is an institution’s enhanced role in monitoring its student-athletes and especially in the age of social media. Social media websites potentially contain a treasure-trove of so-called “personal” information regarding the student-athlete only some of which is legitimately sensitive. The nature of the other information is cringeworthy for an athletic department: a student-athlete bragging about cheating in the classroom, acknowledging that he accepted improper compensation or gifts or admitting he engaged in conduct that violated school rules. Out of this reality stems efforts by many colleges and universities to routinely require student-athletes to “friend” at least one member of the school’s compliance team or coaching staff for purposes of monitoring social media activity. Those days are now over in states like New Jersey.

It’s not clear whether the Act makes monitoring student-athlete monitoring on social networking websites significantly harder or even make social media monitoring any more ethical (for example, what is to stop a coach from “friending” a student-athlete under false pretenses using a fake identity). That said, detractors of A-2789 may find problematic (privacy be damned) that social media is now undeniably another platform which allow institutions to monitor student-athletes who may be in violation of NCAA rules and that the trend toward the A-2789 mold arguably undermines the school’s ability to comprehensively do that. If the student-athlete is an extension of the institution, it is entirely valid that the institution has a vested interested in knowing what that student-athlete is doing behind the curtain of his social media screename.

But aside from mere monitoring, A-2879’s passing inevitable begs the question of whether hindering access to a student’s social media account cripples the role of the college or university in protecting the student. Undoubtedly, some universities have embraced social media as a brand building tool for student-athletes and the university itself. Others have done everything possible to limit or ban the usage of social media because overexposure via social media can be virulent. As to the latter, student-athletes are potentially bombarded on social networking websites not only by the media and peers but by those with fraudulent intent (as in the headline grabbing Manti Te’o scandal which emerged in January). Higher institutions arguably have a role in protecting a student-athlete’s personal brand or career after sports and having rules that preemptively safeguard against those threats, such as the mandatory disclosure of account usernames and passwords, can prove beneficial albeit controversial.

For now, New Jersey has insulated its student-athletes in ways other states have not; colleges and universities cannot require the disclosure of social networking account information and may not even ask whether a student has such an account. That may mean greater protection of the student-athlete. What it means for the college or university remains to be seen.

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