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The Brave New World of MySpace and Facebook

The Brave New World of MySpace and Facebook
April 3, 2007

College students are flocking to social networking sites on the Internet in stunning numbers, often unaware of the potential dangers that can arise there. These dangers primarily arise from posting personal information online that can be viewed by criminals, potential employers, and school administrators, which can result in identity theft, loss of job opportunities, and violations of school rules. Campus administrators should inform their students about the potential dangers of using social networking Web sites -- but they should be cautious not to do so in ways that could make them liable if the students engage in illegal behavior.

Students view social networking Web sites as private databases that permit them to communicate using a multimedia-based approach, but many don’t realize the potential dangers that accompany this type of activity. Because of this, colleges must provide their students with information regarding three major concerns in sharing information online: (1) the threat of criminal behavior; (2) how they might be seen by potential future employers; and (3) possible violations of their institution’s student code of conduct.

Although many students believe the personal information they share on social networking sites is not viewed by others, that information can provide criminals with enough detail to identify the student.  In doing so, a student who posts personal details online can give criminals enough information to commit crimes such as stalking or identity theft.  Because of the high risk of such crimes when personal information is posted on social networking Web sites, colleges should advise their students not to share private information online, such as names, addresses, email addresses, birthdates and phone numbers.

Information that students may think is personal could be viewed by potential employers if posted on social networking sites.  As a result, colleges and universities should warn their students not to post inappropriate messages or photographs that could negatively influence an employer’s perception.  Many employers are aware of social networking Web sites, and some use these sites to check for negative attributes of an applicant.

A recent New York Times article highlighted this concern: “[N]ow, college career counselors and other experts say, some recruiters are looking up applicants on social networking sites ... where college students often post risqué or teasing photographs and provocative comments about drinking, recreational drug use and sexual exploits in what some mistakenly believe is relative privacy.” Because the information posted by students on social networking Web sites is often publicly viewed, colleges should remind their students that the information they post on these sites is not private, and that potential employers could use that information to form crucial first impressions about student applicants.

Much of the information that would create concern among potential employers if viewed on a social networking Web site could also violate a school’s code of student conduct. These student rules and restrictions are often found in a student handbook or similar school publication. The Syracuse Post-Standard described this issue as “a growing trend where officials nationally are paying attention to what their students are posting on the Internet.”

Students have been found guilty of violating these student regulations at numerous schools.  At Pennsylvania State University, students created a Facebook group entitled “I rushed the field,” to which students joined and posted photographs and names of people on the field after the school’s win over Ohio State in football.  After accessing the Facebook group’s Web page, university police used that information to identify more than 50 students who violated the school’s policy by rushing the field after the football game.

In addition, a growing number of universities are creating policies to regulate their athletes’ use of social networking Web sites.  Athletes present a unique public image for the university, and schools could be embarrassed if athletes post information online about participating in illegal activities.

In May 2005, students on Louisiana State University’s swim team were reprimanded after athletic administrators discovered the students belonged to a Facebook group that included disparaging comments about swim coaches. One student transferred to Purdue University to avoid being reprimanded and expressed surprise that administrators had found the postings online. Athletic administrators at Florida State University and the University of Kentucky recently warned their athletes to be careful what they post.

Challenges for Colleges, Too

Just as social networking sites pose a set of potential risks for students, they create a set of questions and potential problems for institutions as well.

Although most colleges do not currently monitor their students’ online activities, university police often investigate tips received about information posted on the Internet. As a result, university police and school administrators may learn about information posted on social networking Web sites that violates the school’s code of student conduct.

Three primary questions arise in the context of monitoring these activities. First, is the college monitoring its students’ online activities regularly? A college that doesn’t monitor its students’ online activities should analyze whether monitoring is necessary.

Second, if the institution monitors this activity, why has it chosen to do so?  If a college monitors its students’ online activities to assure that students act in accordance with its mission, such as a military or religious institution, then it may create a “duty of care” toward its students. A duty of care would obligate a college to take all reasonably practicable steps to prevent its students from harm. If a college with a duty of care toward its students does not take all reasonably practicable steps to prevent harm to its students, the college’s actions may be negligent and could expose the college to lawsuits. But colleges that do not regularly monitor their students’ online activities and only investigate tips of potential crimes online may be free to continue periodic monitoring without assuming a duty of care.

Third, has the college informed its students of its policy toward monitoring? A school that informs all incoming students of its policy of monitoring students’ online activities during orientation or posts this information prominently on campus may be more likely to assume a duty of care toward its students. If most students are not informed of a school’s policy of monitoring such activities, however, the school may be less likely to have assumed a duty of care toward its students, because there is likely a lower expectation that the school would monitor these activities.

In addition, the specificity and clarity of a school’s statements informing students of the school’s monitoring policy should be considered.  If the school’s policy statement is ambiguous or its scope is unclear, students may be less likely to rely upon schools to prevent illegal acts resulting from online activity. Statements that clearly state the school’s policy of monitoring, including its scope and application to specific online activities, such as social networking Web sites, are more likely to create a duty of care for the school.

Colleges and universities must inform students about the particular dangers they face online. But if schools actively monitor their students’ online activities and students are aware of this policy, they may have a duty of care that includes preventing any illegal acts committed as a result of information posted online.

Thus, schools should inform their students about the potential dangers of using social networking Web sites, but should also be careful not to become liable if the students engage in illegal behavior.

Bio

Sheldon E. Steinbach and Lynn M. Deavers are lawyers in the higher education practice at the Washington law firm Dow Lohnes

 

 

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