Highland News Leader

Kay: Schools should have to get court order for student password

A state lawmaker from the metro-east is pushing legislation that he says will make it more difficult for schools to acquire students’ passwords to their social media accounts.

Rep. Dwight Kay, R-Glen Carbon, has filed legislation that would amend a state law that went into effect in January 2014. That original law states that a school “may request or require a student to provide a password or other related account information in order to gain access to the student’s account or profile on a social networking website.”

Kay has filed legislation, House Bill 4082, that would add three words — “upon court order” — to the existing law. Kay said the change would prevent schools from getting a student’s password unless a judge gives approval.

Kay believes his adjustment to the law would allow the courts to narrow any search a school might conduct, while still protecting students and teachers from possible violence.

“We all share this goal that children aren’t bullied online. What concerns us is giving over to schools the fundamental things that go over the line,” he said.

The existing law requires school districts to notify parents in advance that they might seek students’ passwords. Triad Community Unit District 2 sent such a notice to parents that caused a lot of confusion in the district, said Triad Superintendent Leigh Lewis

Lewis said her office received several press inquiries regarding the letter.

“Certain media reports have taken the letter out of context and created an unnecessary controversy,” Lewis said.

Lewis said her letter was based on a model letter provided to the district by the Illinois Association of School Boards.

“We have not had an instance when its administrators have felt the need to request passwords for student social media accounts,” she said.

“However, we can anticipate situations where we might need to see a social networking site.”

Lewis said if a Triad student makes a threat on social media to harm the school or other students and staff, there may be cause for an administrator to ask that student to open his or her account or share his or her password, particularly before he/she has the chance to delete the threats.

“In the same vein, if there is a pervasive bullying issue that needs to be stopped to avoid harm to a student or group of students or a significant disruption to the school environment, we may need to request a password to investigate that issue,” she said.

The Highland School Board updated its cyberbullying policy in November, Superintendent Mike Sutton said Monday. He said the policy defines cyberbullying and outlines the restorative measures that must be considered by the district.

“We hope that students are responsible with their media sites and this does not become an issue,” he said.

Sutton said the district has not encountered any situations that have necessitated use of the new law.

He also does not anticipate the School Board will change its current policy, unless recommendations come from the Illinois Association of School Boards.

The whole idea of an “authority” being able to demand social media passwords has undergone some legal challenges in recent years.

Three years ago, a 12-year-old sued a Minnesota school district after she claimed she’d been coerced into revealing her Facebook password. Last year, the case was settled with the Minnewaska School District paying Stratton $70,000. In this case, Stratton was accused of writing nasty things about her hall monitor.

Kay said his concerns include that the existing law allows schools to find private information that the school had “no reason to be involved with,” such as a family’s finances that might be discussed between a child and parents online.

Also, he said, “it really suggests the school is able and lawfully able to investigate anything a student does at any time.”

Kay said having to get a judge’s approval won’t impede schools’ efforts to prevent bullying or violence.

“It won’t take long to get a court order,” Kay said. “I see nothing wrong with a court order.”

Kay says he just wants to narrow the focus of any electronic search. The law, he says, allows school authorities to pursue tips about potential violence and to pursue that information online if necessary.

“And I don’t have a problem with that, if there is a problem,” he said. “But we do have the First Amendment and the 14th Amendment, and I think we overlooked that.” Those amendments protect speech and provide equal protection under laws.

Ed Yohnka, a spokesman for the state’s American Civil Liberties Union, says Kay’s effort may be misguided.

“We’re a little vexed by Rep. Kay’s proposal, because it appears to interpret (the law) in a way that the sponsor and discussion did not contemplate,” he said.

Yohnka says the original law provides only that schools alert parents that the school may request entry to a student’s electronic life. The parents may deny the request, he says.

“There’s no penalty (for refusing to turn over a password). There’s nothing that compels the student or the parent to turn it over, “Yohnka says.

“That’s not true,” Kay said. “That’s the gist of the law, that in certain circumstances the law is laid out to allow school authority to request the password.”

Neither Kay nor Yohnka knew of any cases so far where students were asked to turn over their passwords to school administrators.

“The school has a wide latitude when they’re at school or at school activities (to monitor student behavior),” Yohnka said. “But we have a mechanism to control young people when they’re outside of school. They’re called parents.”