"undercover Teachers" Beware: How That Fake Profile on Facebook Could Land You in the Pokey - Paul F. ("pete") Welborn Iii
| Publication year | 2012 |
"Undercover Teachers" Beware: How that Fake Profile on Facebook Could Land You
in the Pokey
by Paul F. ("Pete") Wellborn III*
I. Introduction
A. "Undercover Teachers" on the Internet
Depending upon whom one asks, it is either: (1) the dirty little secret of American educators; (2) an effective tool for safeguarding the well-being of students and ensuring their compliance with both governing law and school policy; or (3) an overblown myth that rarely, if ever, actually occurs. "It" is the establishment and use by teachers and academic administrators of "undercover profiles" on social networking websites like Facebook1 or MySpace,2 pursuant to which the educator poses as a peer of the educator's teenage or college age students. When the educator's fictitious persona is "friended," or otherwise added, by a given student to that student's network ofonline insiders, the educator has an unadulterated view into the life of the monitored student. Due in large part to the false sense of security that arises from the student's ability to define and limit his circle of digital friends, the student's communications on the social networking website are often unguarded and unfiltered. It is not unusual for statements and pictures posted by a
* Founding and Managing Member, Wellborn, Wallace & Woodard, LLC, Atlanta, Georgia. Georgia Institute of Technology (B.S., 1986); Mercer University, Walter F. George School of Law (J.D., 1989). Member, State Bar of Georgia. Any opinions or viewpoints expressed in this Article represent those of the Author only.
1. FACEBOOK, http://www.facebook.com (last visited Oct. 11, 2011).
2. MYSPACE, http://www.myspace.com (last visited Oct. 11, 2011).
teenage or young adult user to include irrefutable evidence of conduct that violates his school's code of student conduct or, in some cases, constitutes an outright criminal violation.
B. Social Networking Websites
A social networking website allows its users to create personal profiles or pages and interact with other website members. This category of websites includes Internet destinations like Facebook, MySpace, Twitter,3 and YouTube,4 to name a few. Typically, a social networking website includes content that is available to any visitor to the website and content that is available only to members.5 A social networking website member typically has the ability to designate the various portions of his personal profile, page, or other personal section of the website as public (meaning that it is available to all website visitors) or private (meaning that it is available only to those website members specially approved by the subject member).6 Although the account setup process for most social networking websites is free for the prospective member, the member must nonetheless accept and comply with the governing website user agreement.7 Most social networking websites require, among other conditions of becoming a member (that is, of becoming an "authorized user" of the website), that the registering member provide accurate information during the sign-up process.8
The leading social networking website and, indeed, the most visited website in the world is Facebook.9 There are more than 800 million unique Facebook users worldwide, and on any given day, over 400 million unique users access the Facebook website.10 A substantial number of American Facebook users-roughly 65 million-are between the ages of thirteen and twenty-five years old.11 For good or bad, the daily
3. TWITTER, http://twitter.com (last visited Oct. 11, 2011).
4. YOUTUBE, http://www.youtube.com (last visited Oct. 11, 2011).
5. See, e.g., MYSPACE, supra note 2.
6. See, e.g., Sharing and Finding You on Facebook, FACEBOOK, http://www.facebook. com/about/privacy/your-info-on-fb#control (last visited Oct. 24, 2011).
7. See, e.g., Statement of Rights and Responsibilities, FACEBOOK, http://www.facebook. com/terms.php (last visited Nov. 25, 2011).
8. See, e.g., id. § 4.
9. Daniel Ionescu, Google Names Facebook Most Visited Site, PcWORLD.COM (May 28, 2010,6:29 AM), http://www.pcworld.conVarticle/197431/google_names_facebook_most_visit ed_site.html.
10. Statistics, FACEBOOK, http://www.facebook.com/press/info.php?statistics (last visited Oct. 11, 2011).
11. Ken Burbary, Facebook Demographics Revisited-2011 Statistics, WEB BUSINESS BY KEN BURBARY (Mar. 7, 2011), http://www.kenburbary.com/2011/03/facebook-demograph icsrevisited-2011-statistics-2/.
use of social networking websites has become a ubiquitous part of student life for middle school, high school, and college students across the United States.
C. Crime and Punishment: Incriminating Evidence on Social Networking Websites
1. Witness for the Prosecution? An Alleged Wrongdoer's Own Social Networking Website Pages. Although details as to how the incriminating evidence is discovered are often murky, media reports of students hoisted with their own social networking website petards are appearing with increasing frequency. In Pearl, Mississippi, a high school student was removed from the cheerleading squad after her coach read e-mails sent via the student's Facebook account, to which the cheerleading coach required access pursuant to the squad policy.12 At a high school in Fairfax, Virginia, campus police monitor student social networking accounts to glean information on the students' gang membership and criminal activities.13 In Wisconsin, at the University of Madison-Lacrosse, campus police charged a number of underage drinkers on the basis ofsocial networking website photographs showing the students' illegal use of alcohol.14 The authorities there were able to access the incriminating pictures on the basis ofan undercover social networking website-based investigation.15 The dean of St. John's College in Cambridge, England, reportedly posed as "Pedro Amigo" to investigate an offensive comment made by a student in a social networking website group called "St John's Has Banned Us Taking Wine to Hall."16 After a student recognized the e-mail address associated with the Pedro Amigo account as actually belonging to the dean, the dean made a hasty and embarrassing retreat and deleted the account.17
In Tennessee, a mother's Facebook posting about the mess her two football-playing sons made of their rooms each weekend led to the discovery that her sons did not satisfy the district residency requirement
12. Marquita Brown, Pearl District Sued Over Alleged Facebook Incident, CLARION-LEDGER (Jackson, Miss.), July 29, 2009.
13. Michael Birnbaum, Campus Officers Cruise Facebook, MySpace for Clues to School-Related Crimes, WASH. POST, Apr. 6, 2009, available at 2009 WLNR 6425763.
14. Bryan McKenzie, Column, DAILY PROGRESS (Charlottesville, Va.), Aug. 6, 2011, available at 2011 WLNR 15586553.
15. Id.
16. Caroline Gammell et al., Cambridge Dean Joins Facebook to Monitor Students, DAILY TELEGRAPH (United Kingdom), Oct. 29, 2008, available at 2008 WLNR 20594078.
17. Id.
for the high school they attended.18 As a result, the two boys were declared ineligible and three of their school's football victories were vacated.19 Three students at Chapel Hill Middle School in Atlanta, Georgia, were suspended for violation of school policy in relation to Facebook postings in which they referred to a teacher they disliked as a mentally-ill rapist and pedophile.20 Students at Jonathan Dayton High School in Springfield, New Jersey, were punished for Facebook comments construed by school officials as being racist.21 In Lake County, Illinois, school district authorities unanimously implemented a policy requiring that all students participating in extracurricular activities, including sports, fine arts, and other clubs, sign a pledge acknowledging that any online evidence of "illegal or inappropriate" behavior, including postings and pictures on social networking websites, would be grounds for discipline.22 A sports media company recently unveiled a computer program called "YouDiligence," designed to monitor student-athletes' social networking website accounts for incriminating or inappropriate posts.23 Finally, in Texas, a Burleson High School eleventh grader was suspended for allegedly profane content on her MySpace account.24 A complete account of all instances of social network-related discipline meted out at high schools and colleges would fill volumes. As social networking website use by high school and college students continues to skyrocket, these incidents will no doubt continue to occur with ever-increasing frequency.
2. Student/Parent Reactions and Educator Liability. School-related discipline arising from comments or pictures appearing on a
18. Tenn. Mom's Facebook Post Costs Sons' Football Team 3 Victories, CITIZENS TIMES (Asheville, N.C.), Sept. 27, 2011, available at 2011 WLNR 19828384.
19. Id.
20. Ty Tagami, Student: Principal Forced Deletion of Facebook Posts, ATLANTA J. CONST. (Mar. 3, 2011, 5:53 PM), http://www.ajc.com/news/student-principal-forced-deletion-858326.html; see also Ty Tagami, No Expulsion For Kids' Facebook Posts About Teacher, ATLANTA J. CONST. (Mar. 10, 2011, 5:09 PM), http://www.ajc.com/news/no-expulsion-for-kids-867892.html.
21. Brett Biebelberg, School Officials Crack Down on Student-Created Facebook Group, SPRINGFIELD PATCH (Mar. 1, 2010), http://springfield.patch.com/articles/school-officials-crack-down-on-student-created-facebook-group.
22. Changes Affect Student Posting Online, CHICAGO TRIB., May 23, 2006, available at 2006 WLNR 8890519 (internal quotation marks omitted).
23. Dave Copeland, Keep it Clean Kids, Software's Watching, BOSTON GLOBE, Jan. 19,
2009, available at 2009 WLNR 1034021.
24. Shirley Jinkins, Burleson School Officials Remove Girl's Demerits, Drill Team Suspension, FORT WORTH STAR-TELEGRAM, Aug. 12, 2009, available at 2009 WLNR 15607259.
student's social networking website account is often met with opposition and outrage by the involved students, their parents, their peers, and, in extreme circumstances, results in legal...
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