Holy Twitter, Batman

Holy Twitter, Batman!

What education leaders need to know about the law and technology Karen Haase Harding & Shultz (402) 434 434-3000 3000 khaase@hslegalfirm.com H & S School Law @ @KarenHaase

Agenda g  FCC’s August g Order  Cyberbullying  Legal Issues with 1:1  Search and seizure issues  Google Apps for Education

FCC August 2011 Order “Beginning July 1, 2012, schools’ I t Internet t safety f t policies li i mustt provide for educating p g minors about appropriate online behavior, including interacting with other individuals on social networkingg websites and in chat rooms and cyberbullying awareness and response.�

FCC August g 2011 Order < Since 2001,, CIPA required q schools to certify that internet safety policies and technology protection measures to receive “E-Rate” < Requires schools to use “blocking technology technology”

FCC August g 2011 Order < 2008 -- Congress g passed Protecting p g Children in the Twenty-First Century Act < Required schools to educate on: • appropriate on-line behavior, • interacting on social networking websites & chat rooms • cyberbullying

The Policyy < Must certifyy its existence on Form 486 or Form 479 â&#x20AC;&#x201C; must retain documentation for at least five y years. < Does not have to include specifics as to the particular program < FCC will not detail specific procedures or curriculum

We Need Definitions!! < < < <

What is: inappropriate for minors social networking cyberbullying y y g Minor â&#x20AC;˘ Nebraska law defines as under 19 â&#x20AC;˘ FCC defines as under 18

FCC did tell us: < Schools can decide for themselves whether to block Facebook and MySpace < Declaringg such sites categorically g y harmful to minors would be inconsistent with focus on â&#x20AC;&#x153;educating minors about appropriate on-line behavior

Cyberbullying

J.C. v. Beverly Hills Unif. Sch. Dist. (Cal.)  8th grade girls talking smack about a peer; uploaded l d d tto Y YouTube T b  Principal p suspended p student who uploaded  Court: no disruption to school school, no nexus to education, no basis for punishment

Sauerhaft v. Bd. Of Ed. (NY 2009)  Student e-mailed peer on school acc’t: • FATTYFATTYFATTYFATTY fatty f tt mcfatfat wow you are one fat f**k and everyone hates h t you • Show me yyour tits • You you fat f**k I want to have sex with you in the middle of the night ….  Recipient sued claiming violation of Title IX and § 1983

Emmett v. Kent Sch. Dist. No. 415 (W D Wash.

(W.D. Wash 2000)  Website contained mock obituaries of classmates and visitors voted on who would die next  Student suspended for 5 days  Court: • No evidence of true threat • No evidence of disruption • Missing playoffs is irreparable injury

Bullying y g in Nebraska â&#x20AC;&#x153;any y ongoing g gp pattern of p physical, y , verbal,, or electronic abuse on school grounds, in a vehicle owned owned, leased leased, or contracted by a school being used for a school purpose by a school employee emplo ee or his or her designee, designee or at school-sponsored activities or schoolsponsored athletic events.â&#x20AC;?

Bullying y g in Nebraska â&#x20AC;&#x153;any y ongoing g gp pattern of p physical, y , verbal,, or electronic abuse on school grounds, in a vehicle owned owned, leased leased, or contracted by a school being used for a school purpose by a school employee emplo ee or his or her designee, designee or at school-sponsored activities or schoolsponsored athletic events.â&#x20AC;?

What can staff do?  Keep “Responding and Reporting” separate in i your mind i d  Focus on Small Stuff  Talk to kids about tech  Talk to kids about managing g g anger g  Start with elementary kids  Communicate to kids that you care about this issue  Enlist E li t kids kid

Helping Kids Deal; Tell them to: ►Stop.

Don’t respond to the bully.

►Block.

Block the cyberbully or limit all communications to those you can trust trust.

►Tell.

Tell a trusted adult.

If you discover cyberbullying  Do not close your eyes  Report R to administration d i i i asap  Document everything

Does the Victim Need Interventions?  Inerventions • Social S i l skill kill training t i i • Hygiene training with, sped teacher, counselor or other staff • Peer mentor  Be ready for a 504 or SpEd request

1:1 Issues < 1:1 • Computers C • Kindle/Nook • iPad • iPod iP d touch t h • BYOT < CIPA? < Use for cyberbullying? < Search and seizure issues

CIPA < E-Rate application -- NOT certifying tif i that th t you ensure kid kids will ill never be exposed p < Does not require the tracking of Internet use by minors or adults adults. < It is not clear if CIPAâ&#x20AC;&#x2122;s filteringg extends to networks outside the school environment

My Recommendations < Have a policy that makes clear: • you are filtering filt i access to t information on school campus, p , not the device itself • Require both parents and students to sign g ap permission slip p • Remind students that they aren’t to download any content without permission

Search and Seizure Issues

No “search” if Container is p public p property p y and student has no expectation of privacy Item in plain view Item abandoned Student consents

New Jersey vv. TLO • Standard is reasonable suspicion • Does not require q absolute certainty y • Choplick’s suspicion was the sort off ““common sense conclusion l i about b t human behavior” which “practical p people,” including government officials are entitled to reply upon officials,

Determining “reasonableness” • In order for a search to reasonable it must be: – Reasonable at its inception – Reasonable in scope p

So what does this have to do with Technology?

Technology gy & Searches Cell Phones & Other Personal Tech • Confiscation doesn’t raise 4th Amend.

• Looking L ki in i phone h does d (Kl (Klump v.

Nazareth Area School District) • But that doesn’t mean you can’t do it

School Computers Computers, E E-mail, mail etc etc.

• District property – no search • Personal e-mail stored on servers – “plain view”

Google Apps for Education

Google g Apps pp  Make sure agreement g with Google g covers FERPA, CIPA, COPPA and other BS  Amend District’s FERPA policy to list Google as “administrator” administrator  Amend District’s Directory Information policy li tto iinclude l d user ID “used “ db by th the student for purposes of accessing or communicating in electronic systems” (need legaleese here)

Google g Apps pp  Issues to address in p permission form: • Child Internet Protection Act (CIPA) • Children Children’ss Online Privacy Protection Act (COPPA) (school as agent) • Family Educational Rights and Privacy Act (FERPA) • Right Ri ht to t investigate i ti t the th contents t t off their student’s email account and Apps for Education files.

Google g Aps p  Issues to address in p permission form (con’t): • Parents are responsible for monitoring their child’s use of Apps at home • Acceptable Use, Privacy and Safety • Data D t S Security it ((responsibility ibilit off the th student to make backups)

Google g Aps p Checklist    

 

COPPA statement in policy or handbook CIPA statement in policy or handbook handbook, with blocking technology in place FERPA statement that third-part third part website operators are “school administrators” Include student identification number (not ( social security number) in directory information Signed acceptable use policy Parents have not opted out of disclosure of directory information

Holy Twitter, Batman!

What education leaders need to know about the law and technology Karen Haase Harding & Shultz (402) 434 434-3000 3000 khaase@hslegalfirm.com H & S School Law @ @KarenHaase