Amendment 1

SENATE . . . . . . . . . . . . . . No. 2320

The Commonwealth of Massachusetts

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In the One Hundred and Ninetieth General Court
(2017-2018)

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SENATE, Thursday, March 1, 2018

The committee on Ways and Means to whom was referred the Senate Bill relative to social media privacy protection (Senate, No. 991),-- reports, recommending that the same ought to pass with an amendment substituting a new draft with the same title (Senate, No. 2320)

For the committee,
Karen E. Spilka

SENATE . . . . . . . . . . . . . . No. 2320

The Commonwealth of Massachusetts

_______________

In the One Hundred and Ninetieth General Court
(2017-2018)

_______________

An Act relative to social media privacy protection.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Chapter 15A of the General Laws is hereby amended by adding the following section:-

Section 45. (a) As used in this section, the following words shall have the following meanings unless the context clearly requires otherwise:

“Educational institution”, a public or private higher education institution chartered, located, offering courses or otherwise doing business in the commonwealth or authorized by the commonwealth to grant degrees.

“Personal social media account”, a social media account, service or profile that is used by a current or prospective student exclusively for personal communications unrelated to any educational purpose of the educational institution; provided, however, that “personal social media account” shall not include a social media account created, maintained, used or accessed by a student or prospective student for education-related communications or for a related educational purpose of the educational institution.

“Social media”, an electronic medium that allows users to create, share and view user-generated content including, but not limited to, uploading or downloading videos or still photographs, blogs, video blogs, podcasts, messages, emails and internet website profiles or locations.

(b) An educational institution shall not:

(i) require, request or coerce a student or prospective student to disclose a user name, password or other means for access to a personal social media account or to provide access through a user name or password to a personal social media account;

(ii) compel a student or prospective student to add a person including, but not limited to, a coach, teacher, school administrator or other school employee or school volunteer to the student’s or prospective student’s list of contacts associated with a personal social media account as a condition of acceptance or as a condition of participation in curricular or extracurricular activities;

(iii) require, request or coerce a student or prospective student to reproduce or disclose photographs, videos or information contained within a personal social media account; or

(iv) take or threaten adverse action against a student or prospective student for refusing to disclose information specified in clause (i) or (iii) or for refusing to add a person including, but not limited to, a coach, teacher, school administrator or other school employee or school volunteer to a list of contacts associated with a personal social media account as specified in clause (ii); provided, however, that taking or threatening adverse action shall include, but not be limited to, restraining a student’s participation in curricular or extracurricular activities.

(d) An aggrieved student or prospective student may institute a civil action for damages or to restrain a violation of this section and may recover: (i) $500 for each request that is found to have been a willful violation of clause (i) or (ii) of subsection (b); and (ii) $500 for each adverse action that is found to have been a willful violation of clause (iii) of said subsection (b); or (iii) actual damages if the amount of actual damages exceeds the amounts provided for in clauses (i) and (ii). In awarding damages under this section, the court may also award reasonable costs, interests and attorneys’ fees.

(e) Nothing in this section shall limit the right of an educational institution to promulgate and maintain lawful policies governing the use of the educational institution’s electronic equipment, including policies regarding the use of the internet, email and social media.

(f) Nothing in this section shall prevent an educational institution, upon receipt of specific relevant information, from requesting access to a student’s personal social media account to ensure compliance with applicable state or federal laws, rules or regulations, legally-mandated investigations of a student’s actions or judicial directives; provided, however, that prior to making a request to a student for access to the student’s personal social media account, an educational institution shall notify the student and, if a minor, the student’s parent or guardian of the grounds for the request and inform the student, and the parent or guardian when applicable, that the student is not required to give access to a personal social media account; provided further, that if the situation does not allow for prior notice to a parent or guardian due to the educational institution’s reasonable belief of the presence of an immediate danger of death or serious bodily injury to any person, notice to a minor student’s parent or guardian shall be provided in a reasonable period of time thereafter. An educational institution shall only make the request for access to a student’s personal social media account if: (i) the educational institution has no reasonable means of otherwise obtaining the relevant information; (ii) information gained from access to a student’s personal social media account shall be used solely for purposes of the investigation or a related proceeding; and (iii) any access to a student’s personal social media account shall be limited to identifying relevant evidence. If a student does not permit access to a personal social media account, the educational institution shall not take or threaten adverse action against a student for such refusal.

(g) Nothing in this section shall prevent an educational institution from disclosing lawfully obtained information derived from a student’s personal social media account to parties, including, but not limited to law enforcement, when disclosure to those parties of such information is necessary to protect a person against an immediate danger of death or serious bodily injury or as otherwise required by law.

SECTION 2. Chapter 71 of the General Laws is hereby amended by adding the following section:-

Section 98. (a) As used in this section, the following words shall have the following meanings unless the context clearly requires otherwise:

"Educational institution”, a public or private institution that provides elementary or secondary education.

(b) An educational institution shall not:

(i) require, request or coerce a student or prospective student to disclose a user name, password or other means for access or to provide access through a user name or password to a personal social media account;

(ii) compel a student or prospective student to add a person including, but not limited to, a coach, teacher, school administrator or other school employee or school volunteer to the student’s or prospective student’s list of contacts associated with a personal social media account as a condition of acceptance or participation in curricular or extracurricular activities;

(iii) require, request or coerce a student or prospective student to reproduce or disclose photographs, videos or information contained within a personal social media account; or

(f) Nothing in this section shall prevent an educational institution, upon receipt of specific relevant information, from requesting access to a student’s personal social media account to ensure compliance with section 37O or any other applicable state or federal laws, rules or regulations, legally-mandated investigations of a student’s actions or judicial directives; provided, however, that prior to making a request to a student for access to the student’s personal social media account, an educational institution shall notify the student and, if a minor, the student’s parent or guardian of the grounds for the request and inform the student, and the parent or guardian when applicable, that the student is not required to give access to a personal social media account; provided further, that if the situation does not allow for prior notice to a parent or guardian due to the educational institution’s reasonable belief of the presence of an immediate danger of death or serious bodily injury to any person, notice to a minor student’s parent or guardian shall be provided in a reasonable period of time thereafter. An educational institution shall only make the request for access to a student’s personal social media account if: (i) the educational institution has no reasonable means of otherwise obtaining the relevant information; (ii) information gained from access to the student’s personal social media account shall be used solely for the purposes of the investigation or a related proceeding; and (iii) any access to a student’s personal social media account shall be limited to identifying relevant evidence. If a student does not permit access to a personal social media account, the educational institution shall not take or threaten adverse action against a student for such refusal.

(g) Nothing in this section shall prevent an educational institution from disclosing lawfully obtained information derived from a student’s personal social media account to parties including, but not limited to, law enforcement when disclosure to those parties of such information is necessary to protect a person against an immediate danger of death or serious bodily injury or as otherwise required by law.

SECTION 3. Chapter 75 of the General Laws is hereby amended by adding the following section:-

Section 48. (a) As used in this section, the following words shall have the following meanings unless the context clearly requires otherwise:

“Personal social media account”, a social media account, service or profile that is used by a current or prospective student exclusively for personal communications unrelated to any educational purpose of the University of Massachusetts; provided, however, that “personal social media account” shall not include a social media account created, maintained, used or accessed by a student or prospective student for education-related communications or for an educational purpose of the University of Massachusetts.

(b) The University of Massachusetts shall not:

(ii) compel a student or prospective student to add a person including, but not limited to, a coach, teacher, school administrator or other school employee or school volunteer to the student’s or prospective student’s list of contacts associated with a personal social media account as a condition of acceptance or participation in curricular or extracurricular activities;

(iii) require, request or coerce a student or prospective student to reproduce or disclose photographs, videos or information contained within a personal social media account; or

(iv) take or threaten adverse action against a student or prospective student for refusing to disclose information specified in clause (i) or (iii) or for refusing to add a person including, but not limited to, a coach, teacher, school administrator or other school employee or school volunteer to a list of contacts associated with a personal social media account as provided in clause (ii); provided, however, that taking or threatening adverse action shall include, but not limited to, restraining a student’s participation in curricular or extracurricular activities.

(d) An aggrieved student or a prospective student may institute a civil action for damages or to restrain a violation of this section and may recover: (i) $500 for each request that constitutes a willful violation of clause (i) or (ii) of subsection (b); and (ii) $500 for each adverse action that constitutes a willful violation of clause (iii) of subsection (b); or (iii) actual damages if the amount of actual damages exceeds the amounts provide for in clauses (i) and (ii). In awarding damages under this section, the court may also award reasonable costs, interests and attorneys’ fees.

(e) Nothing in this section shall limit the right of the University of Massachusetts to promulgate and maintain lawful policies governing the use of the university’s electronic equipment, including policies regarding use of the internet, email and social media.

(f) Nothing in this section shall prevent the University of Massachusetts, upon receipt of specific relevant information, from requesting access to a student’s personal social media account to ensure compliance with applicable state or federal laws, rules or regulations, legally-mandated investigations of a student’s actions or judicial directives; provided, however, that prior to making a request to a student for access to the student’s personal social media account, the University of Massachusetts shall notify the student and, if a minor, the student’s parent or guardian of the grounds for the request and inform the student, and the parent or guardian when applicable, that the student is not required to give access to a personal social media account; provided, further however, that if the situation does not allow for prior notice to a parent or guardian due to the university’s reasonable belief of the presence of an immediate danger of death or serious bodily injury to any person, notice to a minor student’s parent or guardian shall be provided in a reasonable period of time thereafter. The university shall only make the request for access to a student’s personal social media account if: (i) the university has no reasonable means of otherwise obtaining the relevant information; (ii) information gained from access to the student’s personal social media account shall be used solely for purposes of the investigation or a related proceeding; and (iii) any access to a student’s personal social media account shall be limited to identifying relevant evidence. If a student does not permit access to a personal social media account, the university shall not take or threaten adverse action against a student for such refusal.

(g) Nothing in this section shall prevent the University of Massachusetts from disclosing lawfully obtained information derived from a student’s personal social media account to parties including, but not limited to, law enforcement when disclosure to those parties of such information is necessary to protect a person against an immediate danger of death or serious bodily injury or as otherwise required by law.

SECTION 4. Section 150 of chapter 149 of the General Laws, as appearing in the 2016 Official Edition, is hereby amended by striking out, in line 22, the words “or 190” and inserting in place thereof the following words:- , 190 or 192.

SECTION 5. Said chapter 149 is hereby further amended by adding the following section:-

Section 192. (a) As used in this section, the following words shall have the following meanings unless the context clearly requires otherwise:

“Personal social media account”, a social media account, service or profile that is used by a current or prospective employee exclusively for personal communications unrelated to any business purposes of the employer; provided however, that “personal social media account” shall not include a social media account created, maintained, used or accessed by a current or prospective employee for business-related communications or for another business related purpose.

(b) An employer shall not:

(i) require, request or coerce an employee or a prospective employee to disclose a user name, password or other means for access or to provide access through a user name or password to a personal social media account;

(ii) compel an employee or a prospective employee to add a person including, but not limited to, the employer or an agent of the employer to the employee’s or prospective employee’s list of contacts associated with a personal social media account as a condition of employment or consideration for employment;

(iii) require, request or coerce an employee or a prospective employee to reproduce or disclose photographs, videos or information contained within a personal social media account; or

(iv) take or threaten adverse action against an employee or a prospective employee for refusing to disclose information specified in clause (i) or (iii) or for refusing to add the employer or an agent of the employer to a list of contacts associated with a personal social media account as specified in clause (ii).

(d) Nothing in this section shall limit an employer’s right to promulgate and maintain lawful workplace policies governing the use of the employer’s electronic equipment, including policies regarding use of the internet, email and social media.

(e) Nothing in this section shall prevent an employer, upon receipt of specific relevant information, from requesting access to an employee personal social media account to ensure compliance with applicable state and federal laws, municipal ordinances and by-laws, rules and regulations, legally-mandated investigations of an employee’s actions, employer prohibitions against unauthorized transfers of an employer’s proprietary information or other nonpublic financial information, judicial directives or rules of self-regulatory organizations as defined in

the federal Securities Exchange Act of 1934, 15 U.S.C. 78c(a)(26); provided, however, that an employer, prior to requesting access to a personal social media account, shall notify the employee of the grounds for the request; and provided further, that the employer shall only make the request for access to an employee’s personal social media account if: (i) the employer has no reasonable means of otherwise obtaining the relevant information; (ii) information gained from access to an employee’s personal social media account shall be used solely for purposes of the investigation or a related proceeding; and (iii) any access to an employee’s personal social media account shall be limited to identifying relevant evidence.

(f) Nothing in this section shall prevent an employer from disclosing lawfully obtained information derived from an employee’s personal social media account to parties, including, but not limited to, law enforcement, when disclosure to those parties is necessary to protect against an immediate danger of death or serious bodily injury to the employee or another individual or as otherwise required by law.

(g) For the purposes of this section, an intern, whether paid or unpaid, shall be an employee.