Delaware's Workplace Privacy Act (H.B. 308), died with the end of the legislative session. As readers know from my several prior posts, I won't exactly be mourning the loss. The Bill's companion legislation, H.B. 309, did survive, however, passed by the State Senate during its final session. Although my attention has been focused on H.B. 308, which would have affected all employers operating in the State, H.B. 309 is worthy of discussion, as well.
If signed by Gov. Markell, H.B. 309 will prohibit post-secondary schools in Delaware from certain practices relating to student's social-media accounts. Specifically, the Bill will prohibit colleges and universities from:
- requiring a student to turn over his or her Facebook username or password as a condition of obtaining or keeping a scholarship;
- requiring a student to install social-media-monitoring software onto his or her personal phone or computer; and
- requiring a student to accept a Facebook friend request from a school employee or other agent of the school.
Delaware is the first state in the country to pass such a law, although several similar Bills have been introduced in several states, as well as on Capital Hill. So what motivated this legislative initiative? Lest I not pretend to understand the political machine, I'll venture a general guess. Over the past few years, it has become increasingly common for schools to require students on athletic scholarships to be Facebook friends with their coaches, presumably so the coach can monitor the student's Facebook page.
For what exactly, I'm not entirely sure but I would guess that "scandalous" photos would be at the top of the list. How "scandalous" is defined, surely, varies by coach and school. I've also heard of this practice being adopted by high schools for their student athletes.
In April, I was invited to speak to a class of students at the University of Pennsylvania's Wharton School of Business. As I have in years past, I asked them whether the practice of "mandatory friending" was something they'd seen for student athletes. To my surprise, they said that mandatory friending was commonplace--and it was not limited to students on scholarship. Several members of the school's swim team were present and said that all swim-team members had to be Facebook friends with their coach, regardless of whether they were scholarship recipients.
I asked them whether they were offended by the practice or felt that it was an invasion of privacy. Again to my surprise, the answer was a resounding, "no." They said that they understood that the practice had a legitimate purpose--to prevent scandal to the swim team that could embarrass the school or, worse, cause the team to lose funding or other support. They also said that they didn't mind because they had nothing to be embarrassed about in the first place. They didn't engage in scandalous behavior and certainly didn't post any scandalous pictures of themselves on their social-networking profiles.
How mature, I thought.
So, if signed, how will the new law affect Delaware students? I have never heard reports of any of our State's post-secondary institutions engaging in either of the first two prohibited acts--demanding a student turn over his password or requiring that students install monitoring software. The third prohibited practice, though, mandatory friending, will have to cease to the extent it goes on in the first place.
And what will be the impact of this prohibition? According to the Wharton students, it would be detrimental only to the students. Here's the example they gave:
Student X, a member of the track team, sells anabolic steroids and "advertises" his conduct via Facebook. If the student-player is required to be Facebook friends with the team's coach, such conduct could be quickly detected and turned over to law enforcement. Without the watchful eyes of a school authority, it would be up to fellow students and team members to turn over the student to police or school authorities. Although it's nice to think that this would happen, I think it's fair to say that there's hardly any guarantees.
If, however, the student is arrested and a public scandal ensues, the team loses credibility and support from the university community, fellow students, and from donors. The loss of donor support can result in decreased funding to the program, which can, in turn, translate into less scholarship money. Which harms--not helps--student athletes.
Although I think the law has far fewer negative implications than H.B. 308 would have had, if it had been passed, I tend to think that they two Bills share at least one unfortunate similarity--both are the result of over-zealous legislative efforts. Contrary to the claims of the Bill's drafters, it seems to me that this is another example of legislating a problem that does not exist.
I suppose there is one problem that this law will correct, though. If you are a student at a Delaware college or university and want to do bad things and post about them on your Facebook page without consequence from your authority figures, this law will probably fix that problem. Congratulations, wrongdoers--you can count H.B. 309 as a big "W" in your Win column.
Read more Labor and Employment Law insights from Margaret (Molly) DiBianca in the Delaware Employment Law Blog.
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