Justin and I have been focusing a lot on what I like to call “Facebook Faux Pas” - or, in general, unwise practices on social networking, social media, and microblogging sites.  A new site has been receiving a lot of attention lately - PleaseRobMe.com.  Check it out at your convenience.  Basically, it runs a simple script on Twitter.com to identify and aggregate posts pushed through from one geosocial networking site (Foursquare.com) where users have “checked in” or otherwise updated their current location through their mobile device’s GPS functionality.  Individuals, of course, post these updates to quickly and conveniently inform their friends as to where they are, or where they are going to be.  Obviously, though, revealing of one’s location (or one’s absence from home) may increase the risk of personal victimization or property theft - or both.

When giving talks to youth, I share plenty of real-world examples of how teenagers and young adults unwittingly allow a dossier of contact information to be collected about them through the connecting of their candid posts and messages online.  To note, we’ve actively researched this happening on social networking sites in papers here and here.  To be sure, our research has found that youth overall are becoming more discerning and protective with the contact information they share, but our studies have not included microblogging sites and the content of status updates.  If that is the case, those intent on bullying, abusing, or otherwise harming others have an increasing (or at least steady) amount of access to a meaningful number of potential victims based on those victims’ participation within cyberspace.  In criminology, we have a subfield termed “victimology” that focuses in on how individuals contribute to their own victimization through negligence, precipitation, or provocation.  It seems very applicable as a paradigmatic lens through which to view all of this.

It is remarkable to think how far we have come in such a short period of time as it relates to our level of comfort in sharing personal information online.  Ten years ago, individuals were concerned with sharing their primary email address for fear of spam (and usually had a secondary email address which they more often used across the Web).  Posting one’s first and last name back then was a rarity, as anonymity and pseudonymity were more commonly preferred and adopted.  Now, because of Facebook and similar sites, most of us seem tremendously comfortable using our full name in cyberspace - and posting so much more about who, what, when, why, and where we are.  Youth who have grown up with these technologies are even more inclined towards full disclosure, and so we have GOT to get them thinking about what they type, send, and post before their actions inadvertently invite harm.

We’ve had quite a bit of feedback regarding our recent post that discussed whether or not schools can discipline students for creating a Facebook page that is critical of, or harassing toward, a staff member.  The courts have given their perspective on a few different cases, but I thought I would post this simple poll for readers to weigh in themselves regarding their personal beliefs about what should or should not be allowed. Feel free to add the justification for your answer as a comment.

(if you don’t see a poll below, please try again later…we have been having trouble with the polling software)

There have been a few high profile cases recently reviewed by the courts, and summarized in the media, where students have sued their schools arguing that discipline they received as a result of improper online speech was a violation of their First Amendment right.  The most recent case involved a former Florida high school student, Katherine Evans, who created a Facebook page called “Ms. Sarah Phelps is the worst teacher I’ve ever met!” and encouraged other students to “express [their] feelings of hatred.”  Evans was suspended for three days and removed from her AP classes under a policy prohibiting the bullying and cyberbullying of staff.  With the help of the American Civil Liberties Union, the student sued the principal.  Judge Barry Garber ruled in favor of the student, saying the school overstepped its authority in disciplining Evans.

Two other recent cases involved similar facts.  In 2005, 17-year-old Justin Layshock created a “nonthreatening, non‐obscene parody profile making fun of the school principal.”  While the school’s disciplinary action (10 day suspension) was initially upheld in a 2006 hearing, the judge in the case later reversed himself, saying the school went too far.  In February of 2010, the 3rd U.S. Circuit Court of Appeals weighed in and agreed.  In 2007, a 14-year-old student from Pennsylvania was disciplined for creating a profile calling her principal “a sex addict and pedophile.”  In this case, the court upheld the actions of the school.  These differing opinions seemingly left everyone wondering what the standard really is.  But in all of these cases, it came down to whether or not the speech resulted in a substantial disruption at school.

Sameer and I discuss the issue of student speech quite often in our workshops for educators, because it is such a tricky matter.  And we hear many examples where students create inappropriate profiles online directed toward other students or staff.  In fact, earlier this week a mother called me to seek my assistance in helping to remove a Facebook page that her son had created disparaging a teacher at his school.

It is important to acknowledge that students certainly do have free speech protections under the First Amendment to the U.S. Constitution.  It must be noted, however, that when at school, student speech can be restricted much more than if the student was not physically on campus.  A large body of case law has established that schools can discipline students, and restrict their speech at school, as necessary to maintain an appropriate learning environment (see, for example, Bethel School District v. Fraser, 1986 and Hazelwood School District et al. v. Kuhlmeier et al., 1988).  To be sure, case law has also focused on limiting the ability of educators to restrict speech to only that which occurs on school grounds (see Thomas v. Board of Education, Granville Central School District, 1979).

That said, technology has once again created gray areas with respect to these principles.  What about student speech that occurs away from school but that clearly has some impact on the school?  For example, what if a student creates a web site, from home, using their own personal computer, where they harass a student or criticize a staff member?  This is off-campus speech that clearly affects the school.  While there has been some inconsistency, the courts have generally ruled that in order for educators to intervene in off-campus incidents, they must demonstrate that the speech or behavior caused, or has a great likelihood of causing, a substantial disruption at school.  Just because a teacher or administrator is upset by student speech that occurs off-campus, it doesn’t give them the authority to formally discipline the student(s) involved.  To be sure, school officials ought to contact the parents of the offending party and explain to them the problems with such speech (and hopefully, the parents will take care of it from there).  Moreover, even though the school’s proverbial hands might be tied, the target of the harassing off-campus content has the ability to pursue civil remedies for defamation, intentional infliction of emotional distress, or false light.  The point is that there are other ways to make sure the student responsible will be held accountable.

I have to say that I am concerned by the media attention given to these cases because I am afraid that schools will get the wrong impression and interpret these rulings as evidence that they cannot take actions in any incidents that occur away from school.  And this is simply just not true.  In all cases they have the right to take informal action (calling parents, talking to the students involved, expressing dissatisfaction with the behaviors, an extracurricular sanction such as a temporary ban from participating in a sport or club, or capitalizing on the teachable moment by educating the school body about appropriate discourse).  If they can demonstrate a clear link to a substantial disruption at school, they can definitely take more formal actions.  Schools generally get into trouble when they respond with knee-jerk formal reactions (long-term suspensions or expulsions) without carefully considering all of the facts of the case.

In short, students do have the ability to engage in free speech, but when that speech significantly interferes with the school’s ability to provide a safe and secure learning environment for its students, it falls within the reach of a school’s disciplinary arm.  These issues are discussed in more detail in our book and a paper we have forthcoming in the journal Preventing School Failure.  We also have a fact sheet that details more of the legal and policy implications of these and other rulings.

Sameer and I have been exploring online social networking generally, and adolescent behaviors on MySpace in particular, for over five years.  Since 2006 we have randomly selected several thousand MySpace profiles each year to determine: 1) who is on MySpace and 2) what kind of information they are posting.  Our latest article, which is forthcoming in the journal New Media and Society is now available online.  We also posted a fact sheet on our site which summarizes the most important findings.  Here is the abstract:

MySpace has received a significant amount of negative attention from the media and many concerned adults, who point to several isolated incidents where predators have contacted, become involved with and even assaulted adolescents whom they met through the popular social networking web site. Furthermore, concerned parents have expressed discontent with the amount and type of personal and private information youth seem to reveal on their profile pages. In 2006, the authors performed an extensive content analysis of approximately 2423 randomly sampled adolescent MySpace profiles, and found that the vast majority of youth were making responsible choices with the information they shared online. In this follow-up study, the authors revisited the profiles one year later to examine the extent to which the content had changed. Though exceptions occur, youth are increasingly exercising discretion in posting personal information on MySpace and more youth are limiting access to their profile. Moreover, a significant number of youth appear to be abandoning their profiles or MySpace altogether.

Because it takes a very long time for a project to go from data collection and analysis to publication, some of the information in this article is a bit dated.  Nevertheless, we think the study does shed some light on the changing nature of social networking online among adolescents.  We would appreciate any thoughts you have about the article.  If you aren’t able to access it on the New Media and Society web site, drop me an email and I will send it to you.  By the way, we are close to completing our third article in this series–a comparison of MySpace profiles from 2006 to 2009.  Stay tuned…

Recently, a case came up before the Missouri court involving a 40-year-old woman and a 17-year-old girl, with the former having been charged with felony harassment as she posted the girl’s personal contact information and photo on Craigslist in their subsection for individuals seeking “Casual Encounters” (you can imagine what that means).  To note, this is the first application of Missouri’s new cyberharassment and cyberbullying law, which went into effect in June of 2008 following the media coverage of Megan Meier’s suicide.

The defendant and her attorney claim this was simply a practical joke.  Her attorney also claims that had this same information been written on a bathroom wall, she would not have been charged.

I disagree with both of these assertions. First, there must be a line drawn as to what constitutes a practical joke, and that boundary was crossed when the defendant put the plaintiff at risk for actual, tangible harm.  Secondly, to compare the writing on a bathroom wall to posting on the Internet is preposterous when considering the differential size of populations that would view each. Third, I believe it is completely appropriate for a judge and jury to consider the reality of recent Craiglist-related victimizations when interpreting the content and context of this case.  Much like we don’t shrug off facetious statements about bombs in airports, we can’t shrug off the reality that the disclosure of personal information online can lead to serious harm offline.  Finally, minors are (and should be) afforded even greater protection from these types of actions.

Well, it’s official.  On Sunday, U.S. District Judge George Wu acquitted Lori Drew of all federal criminal charges for her involvement in the suicide of 13-year-old Megan Meier.  As you may recall, back in November a jury initially found Drew guilty of three misdemeanor charges of illegally accessing a protected computer (in essence, she was found guilty of violating MySpace.com’s Terms of Service). About two months ago, Judge Wu alluded to the fact that the case would be dismissed. Now it is official.

We have discussed this issue at length on this blog, acknowledging the various issues at play. Without question, what Lori Drew did was wrong. The question always has been, though, were those behaviors criminal? At the time, there really wasn’t any clear criminal statute that Drew had violated (that has since changed with several states and cities recently passing “cyberbullying laws”). The local prosecutor refused to pursue the case but a federal prosecutor in Los Angeles ultimately filed charges in federal court. It was those charges that have now been thrown out.

So what can we learn from this experience? First, it is important for federal, state, and local officials to clearly articulate legislation that unambiguously addresses the undesirable behaviors. This can be tricky given the constantly-changing nature of technology deviance. That said, any legislation should be grounded in what we know about youth and interpersonal aggression. Second, it is essential that parents, educators, and teens themselves work to prevent cyberbullying from occurring in the first place so that tragic incidents like this do not repeat themselves. Teens need to be empowered to shrug off minor forms of cyberbullying and to consult with an adult when the behaviors become too much to handle. Witnesses need to stand up for targets of cyberbullying by reporting what they see to teachers or parents so that the behaviors do not escalate. Everyone needs to recognize their role in cyberbullying prevention and response. If you don’t know what your role is, find out. You have a responsibility to take action. More on this in future postings…

The case against Lori Drew has been dismissed in federal court today, as the judge seemingly thought it would be wrong to criminalize certain Terms of Service violations of MySpace and other social networking web sites since users often misrepresent themselves online. (Bottom line when it comes to this ruling is that the law used to prosecute Drew was misapplied (and, frankly, not written very well).  I am pleased about this decision due to its implications, and hope that those who make law and adjudicate cases related to online communications continue to carefully evaluate the long-term usefulness of regulation.  I hope that Megan’s family can somehow obtain closure;   Tina Meier continues to work tirelessly to bring attention to cyberbullying through her experience, and we are in her corner.

I was a guest on the New Hampshire Public Radio show “Word of Mouth” with Virginia Prescott this morning where I talked about the proposed Megan Meier Cyberbullying Prevention Act.  You can listen to the brief interview here.  They were gracious enough to send me some potential questions a couple of hours before the interview so I knew what to expect.  Here is a short summary of my responses (even though some of these questions were not ultimately asked):

LORI DREW, THE ADULT DEFENDANT IN THIS CASE, WAS FOUND GUILTY OF VIOLATING MYSPACE’S TERMS-OF-SERVICE… AND ALSO THE “FEDERAL COMPUTER FRAUD AND ABUSE ACT” – ESSENTIALLY AN ANTI-HACKING LAW.  SINCE THERE ARE NO FEDERAL LAWS AGAINST CYBERBULLYING, HOW DO STATES CURRENTLY APPROACH THE ISSUE?

Most states have simply directed school districts to deal with the problem.  They have passed legislation recommending or requiring local school districts to update their harassment and bullying policies to include electronic variants. Unfortunately they have stopped short of providing concrete information regarding when and how schools can respond.  For example, it’s pretty clear that students who use school owned equipment or technology (such as email addresses), or who are on campus when they cyberbully are subject to school discipline.  But what about students who engage in cyberbullying using their own computers on their own time in their bedroom at home?  Does the school have a responsibility or right to discipline the bully in this case?  This is unclear, though there is some existing case law to suggest that if the cyberbullying results in a “substantial disruption” at school that it is then subject to school discipline.  But what exactly is a substantial disruption?  If you are cyberbullying me, Virginia, away from school but we are in the same class at school, clearly my ability to learn is being substantially disrupted.  Nevertheless, I’m not sure this would meet the standard.  These issues need to be clarified.

SINCE MANY OF THESE LAWS ARE LIMITED TO ONLINE HARASSMENT THAT TAKES PLACE ON SCHOOL GROUNDS, WHAT HAPPENS WHEN KIDS GO HOME AND USE THEIR LAPTOPS OR CELL PHONES?

That is one of the biggest problems.  Most cyberbullying incidents are initiated or escalated away from school.  Clearly parents have a major role to play in preventing and responding to these behaviors.  Nevertheless, I still feel that schools can be involved as well—at least informally (though parent/principal conferences, education, etc).  And in certain circumstances, like when the behaviors do result in a substantial disruption at school, more formal discipline may be allowed.

ARE THERE ANY STATES WHERE A SCHOOL DISTRICT CAN TAKE ACTION AGAINST AN ADULT?

I am not aware of any state where schools can take action against adults for cyberbullying.  I assume you are referring to a situation where a parent would be somehow disciplined for the actions of their child—again, I am not aware of any such law.  And I don’t know of any situation where a school could take action against an adult in a case like the Lori Drew cyberbullying incident.

GETTING BACK TO THE PIECE OF LEGISLATION THAT’S ON THE TABLE, CONGRESSWOMAN LINDA SANCHEZ HAS PROPOSED A BILL WOULD MAKE IT A FELONY TO “INTIMIDATE OR HARASS SOMEONE USING ELECTRONIC MEANS… AS PART OF A PATTERN OF REPEATED AND HOSTILE BEHAVIOR.”  WHAT EXACTLY DOES THIS MEAN?

This is the big question—what exactly does that mean?  One of the problems with the proposal is that it can be interpreted in many different ways by many different people.  This is something we have been wrestling with for years: how to come up with a sufficient, concise, and clear definition of cyberbullying.  Due to the nature of the behaviors, any comprehensive definition of cyberbullying risks being too broad.  And lawyers and judges don’t like broad laws.  In spirit, I like the proposed bill.  I’m glad that there is a national discussion about cyberbullying.  Unfortunately, I just don’t think it will hold up in court.

THIS BILL WAS ORIGINALLY INTRODUCED IN MAY 2008, BUT IT DIED IN COMMITTEE.  NOW THE BILL HAS SEVENTEEN CO-SPONSORS.  WHY DO YOU THINK MORE MEMBERS OF CONGRESS ARE SUPPORTING IT THIS TIME AROUND?

I think there have been several high profile cases of cyberbullying over the last year and more and more people are as a result beginning to recognize its harmful nature.  Again, this is a good thing.  Even if this proposal isn’t successful, I am glad to see that we are moving in the direction of identifying cyberbullying as something society would like to prevent and condemn.

ON HIS BLOG, UCLA PROFESSOR OF LAW EUGENE VOLOKH ARGUES THAT THIS BILL IS TOO BROAD TO BE CONSTITUTIONAL.  HE SAYS IT COULD BE USED AGAINST ANYONE WHO SENDS ANGRY EMAILS TO A POLITICIAN OR STARTS A BLOG THAT REPEATEDLY CRITICIZES A COMPANY.  COULD THIS BILL LIMIT FREE SPEECH?

That is the biggest concern.  We always have to balance free speech with responsible speech.  We also have to remember that while students at school don’t “leave their free speech rights at the school house gate,” the rules are different.  Schools have a role to play in teaching students appropriate means of discourse and communication.  They can limit speech that is threatening, offensive, or counter to their educational mission at school.  And once again, if that speech occurs away from school but results in a substantial disruption at school, the school has the authority to respond.

CONGRESSWOMAN SANCHEZ DEFENDED HER BILL ON THE HUFFINGTON POST LAST WEEK.  SHE WROTE, “WHEN SO-CALLED FREE SPEECH LEADS TO BULLIES HAVING FREE-REIGN TO THREATEN KIDS, IT’S TIME TO ACT.”  JUSTIN, YOUR BLOG FOCUSES ON THE CAUSES AND CONSEQUENCES OF ONLINE HARASSMENT.  DO YOU AGREE THAT IT’S TIME FOR ACTION?

Yes, I agree that it is time for action.  I agree 100% with what congresswoman is saying, I’m just unsure that this particular bill will be the best means toward that end.  I talk to victims of cyberbullying all of the time.  I have spoken to Tina Meier, I know what cyberbullying has done to her life.  We need to take action.  In my view, however, most of the action needs to be at the local level—parents, schools, and other local community members need to get involved in preventing and responding to cyberbullying.  Only in rare cases will cyberbullying rise to the level where criminal intervention is necessary.  And in most cases there already exists sufficient laws to prosecute based on these circumstances (harassment or stalking laws, for example).  I would hate to see a 15-year-old get sent to jail for 2 years for engaging in typical cyberbullying.

WHAT WOULD A GOOD PIECE CYBERBULLYING LEGISLATION LOOK LIKE, IN YOUR OPINION?

I good piece of legislation would clearly define cyberbullying in a way that is clear, concise, and comprehensive.  Again, this is a big challenge, but this definition should be based on the growing body of evidence emerging from cyberbullying research.  I would like the legislation to clearly spell out the circumstances under which schools can get involved in cyberbullying cases—especially when they occur away from school.  Good legislation would require schools to educate students about the responsible use of technology—and provide funding for that purpose.  Whose responsibility is it to teach kids to use computers and cell phones responsibly?  Again, parents have a role, but often-times their kids know more about the technology than they do.  Since schools are often providing access to computers and/or requiring students to utilize technology to complete school work, they have a responsibility as well to teach youth to use it responsibly.

BOTH CHILDREN AND ADULTS COULD BE PROSECUTED UNDER THIS BILL.  IF IT DOES BECOME LAW, WOULD THE THREAT OF BEING SENT TO JAIL DETER KIDS FROM HARASSING EACH OTHER ONLINE?

It is unlikely that children (or adults for that matter) would be deterred from engaging in cyberbullying because of this law.  In order to act as a deterrent, a punishment needs to be certain, swift, and sufficiently severe.  While our criminal justice system has been very good at ratcheting up the severity of punishments, there is very little certainty or swiftness of punishment in our system.  It is more likely that students will be deterred by the potential disapproval of parents or peers than any formal criminal justice sanction.  As such, we need to create a culture where all forms of harassment are viewed by society as taboo.

You’ve probably heard about the proposed law in New Jersey that would require social networking sites like MySpace and Facebook to police their users.  This is so frustrating for me to hear, as well-intentioned but oft-misguided legislators propose solutions to overblown online fears.  Social networking sites are not responsible for actively surveilling and censoring the content that users post within their web-based environments because of the federal Communications Decency Act (Section 230).  This 1996 law has been interpreted to state that Internet service providers are not legally liable for user content because they do not hold the role of “Publisher” or “Speaker” of that material.   Providers will, however, quickly respond if Terms of Service violations (in the form of cyberbullying, pornography, or hate speech) are brought to their attention, but they are not legally required to self-regulate offending content created by a third party.

This proposed law tickles the ears of politicians and the general public, but is largely useless since federal law will trump state law and so much Internet-based communication crosses over state and national lines - leading to jurisdictional issues.  It is also problematic in the way it attempts to restrict free speech.  It defines “harassing communication” as “any communication which is directed at a specific person, serves no legitimate purpose, and a reasonable person would believe is intended to threaten, intimidate or harass another person.”  That is tremendously vague and would likely open the door to hundreds of frivolous claims that do not approach accurate conceptions of “cyberbullying.”

It is not an effective use of taxpayers’ money and everyone’s time to pass these types of bills, as they will fall far short of their intended impact.  Our colleague Nancy Willard has been spearheading an initiative to bring researchers together to discuss these types of issues in front of more major public policy officials, so that those officials are equipped to come up with solutions that can actually make a difference.  As Justin and I get more face time with state officials across the nation, we’ll keep you updated.

Here’s a recent query I received from an educator who I have worked with in the past.  I thought her question and my response would be of interest to others so I am posting both here.  Does your school district have a policy regarding cyberbullying or Facebook?  How about cyberbullying on Facebook?

Question: “The reason for my email is that we have recently had issues with Facebook brought to our attention by parents.  Cyberbullying is taking place among our 8th graders and it seems to be affecting the classroom environment.  The principal and I are wondering if you have any sample policies that might help us as we are looking to establish some type of policy quickly to address this problem.”

Response: I am sorry to hear that you are facing problems with Facebook.  We don’t have a sample policy per se, but we suggest elements that you might want to include in your policy.  The problem really isn’t isolated to Facebook.  That is, you don’t need a “Facebook Policy.”  If you tried to be that specific, you would have to update your policy every 6 months or so as different Web sites come in and out of popularity.  You just need a general policy that will cover the kinds of behaviors that are detrimental to your school environment.  You have our book, and you should definitely revisit chapter 5 - especially pages 118-126 to see how your existing policy could be improved based on these suggestion.  Essentially, your policy needs to state that any behavior that disrupts the school environment is subject to discipline.

As I mentioned in my presentation to your folks, you might want to see if you can convene a group of staff, parents, and even students to review your existing policy and to make recommendations for updating it based on these new behaviors that are emerging.  This shouldn’t be a very large group - perhaps 2 or 3 members from each of the above groups - otherwise it may be difficult to get everyone to agree.  This group can then inform your school’s overall approach.  They can make recommendations additions to the policy and for appropriate disciplinary sanctions based on violations of the policy.  I know you are looking for a quick fix (aren’t we all!), but taking the time to develop comprehensive policy, and involving parents and students, will yield dividends in the long run.  It will be easier to sell the policy to parents if key parents are involved in the process.  And the students can help to make sure the policy is comprehensive and realistic.

By the way, in general, if you can demonstrate that the behaviors are substantially disrupting your school environment, even though those behaviors are occurring away from school, the courts have upheld disciplinary sanctions.  And that legal perspective is essentially directed at public schools.  Since you are a private school, you have much more latitude in basically doing what you think is appropriate.  That said, it is still important to have a good policy that parents and even students can get behind.