In her commentary below, Chris Syme, Chair of the CoSIDA New Media/Technology Committee, 
discusses social media privacy concerns as it relates to our student-athletes. One legislative process which is drawing attention focuses in the state of Maryland, The proposed Maryland state law reflects a growing concern with universities collecting students’ social media account information for the purpose of monitoring potentially inappropriate behavior and possible compliance violations.
Follow Syme on Twitter and via her website.
Social media privacy issues are raising concerns at education institutions all over the country. The state of Maryland is currently considering two legislative bills (SB 434 and HB 310) that would “prohibit education institutions from requiring a student or an applicant for admission to provide access to a personal account or service through an electronic communications device, to disclose any user name, password, or other means for accessing specified accounts or services through an electronic communications device, or to install on specified electronic communications devices software that monitors or tracks electronic content.”
Bradley Shear, a private practice lawyer and adjunct professor at George Washington University worked with state legislators to draft the law. Shear practices cyber and social media law in addition to copyright, entertainment, and business law. His blog, Shear on Social Media Law focuses on social media law.
The proposed Maryland state law reflects a growing concern with universities collecting students’ social media account information for the purpose of monitoring potentially inappropriate behavior and possible compliance violations. One of Shear’s biggest concerns is with schools that might be installing monitoring software to follow student-athletes, or asking students to install the software on their personal devices.
Shear says that if schools take on a monitoring role, they would also take on a liability role.
“This is very problematic, not only from a privacy standpoint, but from a legal liability perspective,” Shear said. “Schools are creating a new legal duty to monitor students online in a way they don’t monitor them offline. If you’re not hiring a PI to follow kids into the bars and all over campus, you shouldn’t be doing it online. A good social media policy is basically common sense. (People) should be expected to follow the same behavioral standards mandated by the university’s policies and procedures. Whatever policy you have, you can’t be making separate policies for online and offline,” he said.
In the fall of 2011, the University of North Carolina revised their social media policy to reflect a Notice Of Allegations from the NCAA that they “did not adequately and consistently monitor social networking activity that visibly illustrated potential amateurism violations within the football program.” The UNC revised social media policy says the following: “Each team must identify at least one coach or administrator who is responsible for having access to and regularly monitoring the content of team members’ social networking sites and postings (“Team Monitor”). The Department of Athletics also reserves the right to have other staff members review and/or monitor student-athletes’ social networking sites and postings.”
There is no specific language in the policy requiring students to give the school any of their social media account information, which could make the school a co-administrator of the student accounts. Unless a student-athlete has locked down his or her accounts from public view, their social media postings are public, and the information can be monitored without the student-athlete’s permission. The practice of following student-athletes on social media is becoming commonplace for many institutions. Since social media is public space where there is no expectation of privacy, schools that monitor student-athletes on social media are not in violation of privacy laws.
However, some of the privacy concerns include the use of social media monitoring software, such as UDiligence, designed specifically to offer a running feed of student-athletes’ social media postings and keyword searches. UDiligence clients include (according to their website) Kansas, Baylor, Missouri, Florida, Texas, Mississippi, Louisville, Texas Tech, Utah State, and others. The software is basically designed to aid compliance offices in running down any potential violations that need to be reported to the NCAA.
Stacy Osburn, Associate Director of Public and Media Relations for the NCAA, confirms the use of social media as a compliance aid.
“The monitoring and regulating of social networking sites are done on a campus level, although at times it can also serve as an information resource for NCAA enforcement staff investigators,” she said. “As such, it is up to each institution to determine how it would like to manage social media.”
Chris Yandle, Associate Director of Athletic Communications at Baylor remarked that some schools probably monitor student athletes’ social media feeds for potential NCAA violations. Since schools have a duty to self-report any violations, monitoring public student-athlete communication online is a reasonable way to aid the process, the same as staying aware of their classroom and offline public behavior.
“We rely a lot on educating our student-athletes on what to do,” Yandle said. “We spend time with our teams helping them understand how to use social media correctly. We don’t require students to give us any social media information. I don’t know anyone that does that.”
Osburn reiterated that the NCAA does not have any regulations about training student-athletes to use social media, any more than they do for dealing with the media offline.
“The NCAA interacts with student-athletes during various conferences or other speaking engagements, and social media is a frequent topic. That said, our member schools also typically have a policy or best practices they provide to their student-athletes,” Osburn said.
There is growing concern by institutions that media members are following student-athletes on social media to catch them in compromising behavior that might generate a controversial news story. In the fall of 2011, television sports channel ESPNU sent an email to collegiate basketball athletic communicators asking for student-athlete social media account information to aid in their reporting process. When Yandle received the request at Baylor, he discussed the matter with other Big 12 Conference athletic communicators.
“The decision-making process was simple,” Yandle said. “We (Baylor) don’t promote our student-athlete Twitter handles – essentially we promote head coaches and sports as “official” Baylor Athletics Twitter accounts. When I read ESPNU’s initial request, I forwarded it on to our men’s basketball contacts within the Big 12 Conference and told them we were not going to do it. Everyone said the same thing. As has been in many examples already, promoting ‘personal’ accounts can be a very slippery slope.”
In what seemed like a contradictory action, ESPN had published an opinion piece in June, 2011 criticizing the NCAA for encouraging the University of North Carolina to better monitor student-athletes in the social media space. Clearly, the subject is new ground for media and universities alike, and issues are being sorted out in real-time.
The two Maryland bills are presently in the hearing stages.