Do Your Internet Safety Policies Address the Education of Minors?

By Penelope Glover, Senior Associate
Pleasanton Office

Although July 1, 2012 is less than one month away, there is still time to confirm whether your educational institution is in compliance with the Federal Communications Commission’s (FCC) Report and Order, released August 11, 2011. Pursuant to the FCC Report and Order, "Beginning July 1, 2012, schools’ Internet safety policies must provide for educating minors about appropriate online behavior, including interacting with other individuals on social networking websites and in chat rooms and cyberbullying awareness and response."

While most educational institutions likely already have policies in place for educating minors about online conduct and cyberbullying in order to comply with the Children's Internet Protection Act (CIPA) and to pursue E-rate funds, it would be an excellent time to reexamine those policies, confirm they address online behavior and cyberbullying, and determine whether the policies are effective. In other words, are students actually learning about appropriate online behavior and cyberbullying?

Responding to a Student Sexting Incident Without a Scandal

By Penelope Glover, Senior Associate
and Chet Quaide, Partner
Pleasanton Office

On any given day, an online search for "sexting" news will likely not only uncover several sexting incidents, but a "scandal" and/or criminal activity. Since sexting seems to have originated as a teen phenomenon, educational institutions are often vulnerable to becoming involved in the news coverage and scandal, particularly if the sexting results in mass expulsions, the mishandling of evidence, criminal charges, or tragedy associated with an alleged overreaction or omission. In many respects, the sexting incidents in the news involve the more extreme cases in which a sexually explicit student photograph is widely disseminated and causes considerable disruption within the educational community. While such incidents occur with some frequency, there are many other sexting incidents which, with the responsible and informed response of administrators, staff, students, and parents, could be swiftly and discretely resolved.

Although the appropriate responses to cyber incidents are fact-dependent, each educational institution responding to a sexting incident must typically confront at least two legal issues, in addition to compiling and evaluating the facts. First, since the nature of the image may impact how it should be handled, does the image constitute child pornography? Second, should the educational institution report the image to Child Protective Services ("CPS")?

While Insults About Teachers and School Administrators May Result in Injury, They Might Not Always Result in Student Discipline

By Marisa Lincoln, Senior Associate
and Chet Quaide, Partner
Pleasanton Office

The old adage, "sticks and stones may break my bones, but words will never hurt me" may not be so reassuring in a day and age when anyone can post an insult about someone on a public blog or social media site for a virtual universe of internet users to see. This is especially so if a student or students have posted insults about an administrator or a teacher on a public website that are viewed by other members of school staff, students, parents, and the community.

While school administrators are undoubtedly aware that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," student speech posted on the internet berating administrators and teachers can have the potential of being extremely offensive and demeaning and create embarrassment to those who are targeted. The question then becomes, when can a student's off campus speech in which insults about school administrators and teachers are posted on a social media or other public website be restricted?

Employer-Employee Faceoff: Do You Really Want to Know What is on Your Employees’ or Applicants’ Social Media Sites?

By Penelope Glover, Senior Associate
and Marisa Lincoln, Senior Associate
Pleasanton Office

There has been a lot of buzz recently about whether employers can demand employees or prospective employees to provide passwords to their private social media accounts. The buzz was undoubtedly associated, in part, with a proposed amendment to the Federal Communications Commission Process Reform Act of 2012, which was approved by the House of Representatives on March 27, 2012. The amendment would have enabled the Federal Communications Commission to prohibit covered entities from requiring job applicants or employees to disclose confidential social networking passwords to their employers or prospective employers.

The proposed amendment was rejected by the House of Representatives. Thus, employers may arguably continue to search public social networking sites and request employee and applicant passwords for private social media sites. However, is this practice a good idea?

The Importance of Preserving Electronic Data When Disputes Arise

By Peter Sturges, Associate
Pleasanton Office

During the every day course of business, actual or potential disputes may arise that could lead to later legal action. In these situations, the preservation of electronically stored information can be overlooked.

In addition, litigation discovery rules provide that parties in litigation must take necessary measures to preserve electronic evidence. If appropriate measures are not taken in that regard, a party could be subject to evidence and issue sanctions, together with a counter-claim based on "spoliation of evidence."

The Potential Pitfalls of Cloud Computing

By Peter Sturges, Associate
Pleasanton Office

The trend toward “cloud computing” is increasingly visible as technology firms and service providers vie with each other to provide users with web-based data and software application services. From Apple’s iCloud to Amazon’s cloud-based user libraries to your local cable provider’s data storage plans, everyone wants to provide users with fee-based cloud services.

Cloud computing offers a number of advantages, such as providing online applications (also known as Software-as-a-Service, or “SaaS”), data storage, messaging, email, and web sites that the users themselves do not have to maintain. Cloud-based service providers claim to save users money in the long run by providing these services, notwithstanding that users are charged for them.

Are Your Acceptable Use Policies Up to Date?

By Peter Sturges, Partner
Pleasanton Office
and Anthony De Marco, Partner
Irvine Office

The adoption of acceptable use policies to establish the nature and limits of employee and student access to and use of computer systems is by now a common practice.  Once such policies are established, however, districts and county offices of education sometimes fail to review them to ensure they are current.  In today’s rapidly changing technology environment, these policies can quickly become outdated in the face of new technologies and means of communication, the most recent examples including social networking, micro-blogging, and cloud computing.  It is important that acceptable use policies be kept current to address the impacts of new technologies.

The importance of thoughtful, current policies has been demonstrated in the courts, which continue to grapple with technology-related issues in the employment relationship on a regular basis.  For example, in City of Ontario, Cal. v. Quon (2010) --- U.S. ----, 130 S.Ct. 2619 [see AALRR Alert here], one of the key factors in determining whether the employee had a right to privacy in text messages sent over an employer-owned cell phone was that the employer’s acceptable use policy established that such communications were not private.  Similarly, in Holmes v. Petrovich Development Company (2011) 191 Cal.App.4th 1047 [AALRR Alert here], the court concluded that ordinarily privileged communications between an employee and her attorney were not privileged because the employer’s use policy explicitly establishing to the contrary.  Appropriate acceptable use policies can, therefore, be key documents when legal issues arise.