Published March 20, 2012 - 8:34am
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Last month, I reported on the relationship between several SEC athletic departments and U-Diligence, a company run by a former Department of Defense anti-narcotics contractor that specializes in “monitoring” social media usage by student-athletes. Recently, there has been signs of blowback against this type of activity. On March 14, the Maryland Senate unanimously passed legislation that would prevent colleges in that state—including the University of Maryland, a charter ACC member—from requiring any student, including student-athletes, to provide information or access to their social media accounts.
Senate Bill 434 appears to be the first attempt by any state to recognize legal privacy rights with respect to students and social media. As adopted by the Maryland Senate, the bill prevents a college from requiring a student, or an applicant for admission, to “disclose any user name, account name, password, or other means for accessing a student’s or applicant’s personal account or service through an electronic communications device.” Nor could a school “discipline or otherwise penalize, or threaten to discipline or penalize” a student who refused to disclose such information to school officials. The bill would not, however, prevent voluntary disclosure of such information by students, nor does its provisions apply to any account provided by the institution, such as a school-based email address.
The Maryland Senate passed separate legislation extending similar social media protections to employees of private businesses. Both bills still require passage by the Maryland House of Delegates and signature by Gov. Martin O’Malley.
Such legislation, if adopted in other states, could put schools in direct conflict with the type of social media monitoring already in place with some athletic departments. As my previous report noted, LSU has a contract with U-Diligence that requires student-athletes and student managers “to register with U-Diligence and grant all requested permissions on the application.” While U-Diligence owner Kevin Long emphasized students are not required to disclose passwords, students must still disclose any and all accounts they control. In the case of a service like Facebook, a student would have to “friend” or grant access to U-Diligence or face university sanctions. This would not be permissible under legislation like the Maryland bill.
One reason such legislation may gain traction is the growing encroachment of NCAA policies on the First Amendment rights of students who are not athletes. In 2009, North Carolina State threatened a freshman, Taylor Moseley, who created a Facebook group imploring a high school basketball player, John Wall, to come to the school. The NCAA claimed this violated recruiting rules, even though Moseley had no affiliation with the athletic department. Attorney Victor Broccoli noted in a 2011 article for the Sports Lawyers Journal that by taking such a stand, “the NCAA is essentially regulating the speech of college students,” which conflicts with numerous federal court decisions:
When informed that his Facebook group constituted a recruiting violation and threatened by a compliance director with dissociation from the athletic program, Moseley had no real choice but to comply. Indeed, soon after Moseley was forced to take down his Facebook group, a Duke compliance officer similarly threatened the administrator of a Facebook group, which implored John Wall to enroll at Duke with a cease and desist letter. Unsurprisingly, the administrator of the Duke group, a sophomore, complied with the request.
The chilling effect that such cease and desist letters have on First Amendment protected expression on Facebook also seems unnecessary in light of the actual harm that such Facebook groups have on the recruiting process. These Facebook groups, while publicly accessible (at least in the case of John Wall), do not appear to have any significant effect on the recruitment process. For instance, another group imploring John Wall to enroll at Kansas University facetiously offered Wall “cash money … an Escalade … [and that the administrator's] girlfriend will sleep with you four times a week.” If the NCAA were truly concerned about the involvement of money or sex in the recruiting process, it could investigate those concerns without having to classify every fan as a university representative. One newspaper writer asked over one hundred football and basketball recruits whether such Facebook groups had any effect on their ultimate choice of college; n218 not one said that such groups had any effect whatsoever.
But even the NCAA stops short of requiring schools to monitor social media usage, even by athletes. In its recent report detailing academic fraud and payment of impermissible benefits by the North Carolina football program, the NCAA Division I Committee on Infractions explained there was only a duty to monitor when there were specific allegations of rules violations:
The committee declines to impose a blanket duty on institutions to monitor social networking sites. Consistent with the duty to monitor other information outside the campus setting (beyond on-campus activities such as countable athletically related activities, financial aid, satisfactory progress, etc.), such sites should be part of the monitoring effort if the institution becomes aware of an issue that might be resolved in some part by reviewing information on a site. For example, there exists no inherent duty of institutions to monitor the purchase of clothes by student-athletes. However, if an institution obtains information that a student-athlete’s clothes are being purchased by a booster, and if that student-athlete is seen wearing new and expensive clothes, a duty to investigate the student-athlete’s clothing purchases would arise. Similarly, in this case the committee found a failure to monitor because the institution was informed that [a] student-athlete was either planning to travel out-of-town or had made trips out-of-town.
The committee added, however, that the NCAA could chose to “extend” the duty to monitor social media usage through in-house legislation. But this again would raise potential conflicts with state legislatures and federal court decisions. If Maryland and a handful of other states ban such blanket monitoring, it would be unfair and impractical for the NCAA to try and require it of other schools.
The NCAA also has to tread carefully as it continues to maintain the legal fiction of “amateurism,” whereby college athletes are classified as neither students nor employees. In an employer-employee relationship, social media usage can be regulated through the collective bargaining process. For example, Major League Baseball recently announced a comprehensive Social Media Policy negotiated pursuant to last November’s collective bargaining agreement with the baseball players’ union. If the NCAA attempts to adopt a similar policy via its in-house legislative process, it could face significant legal challenges, as the players have no right to representation in the process. Nor does the NCAA enjoy the same statutory antitrust exemption as labor unions and professional sports leagues.
And in practice, it might not take a great effort to bring down the current social media monitoring regime. Let’s say one state with an SEC school adopts legislation similar to the Maryland Senate bill. The other SEC schools will be forced to reconsider their own policies, as any deviation might create a real or perceived competitive advantage. In other words, Coach A can say to recruit B, “Well if you come to our school, we won’t monitor your Twitter account, because state law says we can’t.” Coach C won’t want to give Coach A that advantage, however slight. And since no state actually requires monitoring of social media accounts—indeed, it would be foolish to create such liability—the inevitable trend will go against monitoring.