Before addressing the privacy of employee social media activity as in Maryland and Illinois, Delaware has become the first state to prohibit public or nonpublic academic institutions from requesting or requiring current students or applicants to "disclose any password or other related account information in order to gain access to the student’s or applicant’s social networking site profile or account by way of an electronic communication device." The law, called the "Higher Education Privacy Act" was signed into law on July 20 by Gov. Jack Markell and becomes effective upon enactment.

 

Under the law, an "academic institution" is a public or nonpublic institution of higher education or institution of postsecondary education. An "electronic communication device” includes a "cell telephone, personal digital assistant, electronic device with mobile data access, laptop computer, pager, broadband personal communication device, 2-way messaging device, electronic game, or portable computing device." Students include persons admitted to the school, even if not in good standing.

Realizing there are a variety of paths to students’ and applicants’ private information in social media, the law also prohibits academic institutions from:

  • requiring or requesting that a student or applicant log onto a social networking site, email account, or any other internet site or application by way of an electronic communication device in the presence of an agent of the institution so as to provide the institution access;
  • monitoring or tracking a student’s or applicant’s personal electronic communication device by installation of software upon the device, or by remotely tracking the device by using intercept technology;
  • requesting or requiring a student or applicant to add the employer or its representative to their personal social networking site profile or account; and
  • accessing a student’s or applicant’s social networking site profile or account indirectly through any other person who is a social networking contact of the student or applicant.

In addition, students or applicants that fail to cooperate with requests or requirements to disclose their password or log on to a site or their account may not be disciplined, dismissed or otherwise penalized or threatened by the academic institution. The reference above to "employer" may be in error and require technical correction, and may be a carry over from a related bill (H.B. 308) being considered in the legislature that would have put similar restrictions on employers. H.B. 308 failed to pass.

The Higher Education Privacy Act does provide for a public safety exception. Public safety departments or police agencies of academic institutions that have a reasonable articulable suspicion of criminal activity are not limited by the law. The law also does not apply to investigations, inquiries or determinations conducted pursuant to an academic institution’s threat assessment policy or protocol.
 

Tags: academic institutions, Delaware, Higher Education Privacy Act, social networking
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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.

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