Uniform Employee and Student Online Privacy Protection Act

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The Uniform Employee and Student Online Privacy Protection Act (UESOPPA) provides a model for states to adopt to enable employees and students to make choices about whether, and when, to provide employers and educational institutions access to their personal online accounts. The act prohibits employers and educational institutions from requiring employees or students to provide them with access to their accounts or to “friend” the institution. Samuel Thumma, vice chief judge of the Arizona Court of Appeals, Division 1, will tell us more about the act.

CHRISTINA ESTES: GOOD EVENING AND WELCOME TO "ARIZONA HORIZON." I'M CHRISTINA ESTES IN FOR TED SIMONS. THE UNIFORM EMPLOYEE AND STUDENT ONLINE PRIVACY PROTECTION ACT IS TOUTED AS A WAY TO PROTECT PRIVACY, BUT SOME CRITICS SAY IT'S NOT STRONG ENOUGH. THE ACT WAS DRAFTED BY THE UNIFORM LAW COMMISSION, A NONPROFIT, NONPARTISAN GROUP OF LAWYERS, JUDGES AND PROFESSORS. THEY DRAFT AND PROMOTE LEGISLATION FOR STATES TO ADOPT. HERE TO TELL US MORE IS SAMUEL THUMMA, VICE CHIEF JUDGE OF THE ARIZONA COURT OF APPEALS DIVISION 1. HE SAYS TONIGHT HE IS SAM.

SAMUEL THUMMA: THAT'S RIGHT. I'M HERE SOLELY ON MY OWN BEHALF. THAT'S MY DAY JOB, BUT I'M A VOLUNTEER UNIFORM LAW COMMISSIONER, AND THAT'S WHY I'M HERE.

CHRISTINA ESTES: SO YOU KNOW VERY MUCH WHAT WE'RE TALKING ABOUT. THAT'S WHY WE INVITED YOU HERE TONIGHT.

SAMUEL THUMMA: I SPENT A COUPLE YEARS WITH IT.

CHRISTINA ESTES: TELL US WHAT IT SAYS, WHAT IT'S DESIGNED TO DO.

SAMUEL THUMMA: SURE. THE ACT IS DESIGNED TO GIVE STATE LEGISLATURES AROUND THE COUNTRY UNIFORM LEGISLATION THAT THEY CAN CONSIDER IN ADDRESSING PRIVACY ISSUES INVOLVING ONLINE PRIVACY PROTECTION, ONLINE ACCOUNTS IN THE EMPLOYMENT CONTEXT AND IN THE SCHOOL CONTEXT. BOTH FOR STUDENTS AS WELL AS STUDENTS WHO APPLIED TO SCHOOLS AND EMPLOYEES AND PEOPLE WHO HAVE APPLIED TO WORK FOR EMPLOYERS. IT REALLY DOES FOUR THINGS. IT PROHIBITS CERTAIN ACTIONS THAT AN EMPLOYER OR A SCHOOL MIGHT WANT TO DO. FOR NONPUBLIC INFORMATION. NONE OF THE ACT AFFECTS WHAT YOU COULD FIND OUT INDEPENDENTLY, BUT WHAT IT SAYS IS IF I HAVE AN ONLINE ACCOUNT THAT'S PASSWORD PROTECTED AND I HAVE APPLIED TO WORK FOR YOU, YOU CAN'T ASK ME FOR MY USER NAME AND PASSWORD AS A CONDITION OF MY APPLICATION OR CONDITION OF MY EMPLOYMENT.

CHRISTINA ESTES: SO WE'RE TALKING ABOUT SOCIAL MEDIA, ESSENTIALLY, FACEBOOK, TWITTER, ANYTHING WHERE I HAVE A PASSWORD?

SAMUEL THUMMA: EXACTLY. AND, YOU KNOW, EMAIL ACCOUNTS FOR THOSE OF YOU WHO STILL USE EMAIL AND BANK ACCOUNTS AND THINGS LIKE THAT. BUT, YES.

CHRISTINA ESTES: I'M SORRY I INTERRUPTED. I WANTED TO MAKE SURE WE WERE ON THE SAME PAGE. THAT WAS ONE OF THE FOUR YOU MENTIONED.

SAMUEL THUMMA: THAT'S WHAT IT PROHIBITS. THEN IT HAS EXCEPTIONS TO THE PROHIBITIONS. FOR EXAMPLE, IF ACCESS IS AUTHORIZED BY STATE OR LOCAL LAW OR BY FEDERAL LAW OR OTHERWISE OR A RULE OF A SELF-GOVERNING REGULATION AUTHORIZED BY FEDERAL LAW THEN YOU CAN GET ACCESS TO IT. SO WE HAVE EXISTING LAW ALONE IN THAT RESPECT. THE THIRD THING IT DOES IS IT RESTRICTS HOW CERTAIN INFORMATION CAN BE USED IF IT'S PROPERLY ACCESSED BY AN EMPLOYER OR A SCHOOL. THEN THE FOURTH THING IS IT TALKS ABOUT WHAT YOU CAN DO OR WHAT YOU NEED TO DO AS AN EMPLOYER OR SCHOOL IF YOU GET PASSWORD INFORMATION BY OPERATION OF ROUTINE MONITORING, LAWFUL MONITORING OF EMAIL, ACCESS BACK AND FORTH, AND IF YOU HAPPEN TO INTERCEPT USER NAME AND PASSWORD INFORMATION WHAT YOU NEED TO DO WITH THAT.

CHRISTINA ESTES: I THINK SOME OF THE CRITICISM THAT I HAD READ ABOUT, AND I KNOW THAT YOU'VE HEARD, IS FROM SOME CIVIL LIBERTIES WHO SAY THAT IT DOESN'T GO QUITE FAR ENOUGH. YOU MENTIONED EXISTING LAWS AND STATUTES AND RULES. IF A UNIVERSITY SAID WE HAVE AN ANTI-HARASSMENT POLICY AND WE WANT TO SEE WHAT YOU'VE BEEN DOING ONLINE, LET US CHECK IT OUT, THERE IS NO WAY FOR ME TO SAY YOU CAN ONLY LOOK AT THIS SECTION. IF I GIVE THEM ACCESS THEY HAVE IT ALL.

SAMUEL THUMMA: IN THAT CONTEXT IT NEEDS TO BE PARTICULARIZED. NOT JUST A GENERAL CONCERN ABOUT HARASSMENT BUT A CONCERN ABOUT A SPECIFIC ACCOUNT OR INDIVIDUAL. ANOTHER CONCERN THAT WE HEARD AND WE CONSIDERED WAS HOW DEEP SHOULD THIS GO? WITH RESPECT TO SCHOOLS, IT APPLIES ONLY IN THE POST-SECONDARY ENVIRONMENT. SO COLLEGES AND UNIVERSITIES, PUBLIC AND PRIVATE. AND SOME OF THE CONCERNS EXPRESSED WERE, WHY DON'T YOU GO INTO HIGH SCHOOL, WHY DON'T YOU GO GRADE SCHOOL? WHY DON'T YOU GO KINDERGARTEN, FAR YOUNGER THAN THAT. THERE ARE A FEW STATES OF 25 OR SO THAT HAVE ENACTED IT IN THE EMPLOYER CONTEXT AND THE 15 OR SO IN THE SCHOOL CONTEXT THAT HAVE GONE THAT YOUNG. BUT A POLICY DECISION WAS MADE BY THE DRAFTING COMMITTEE AND BY THE UNIFORM LAW COMMISSION ITSELF THAT THAT WAS PROBABLY THE RIGHT JOINT TO CARVE AT. THERE IS A LOT MORE SORT OF PARENTS -- SERVING AS A PARENT IN HIGH SCHOOL AND PRIMARY SCHOOL. ALSO THE THOUGHT WAS FROM AN ENACTABILITY PERSPECTIVE IS THE SCHOOL BOARDS HAVE A VITAL AND A LOUD VOICE IN TERMS OF HOW THEIR SCHOOL SHOULD BE RUN. AND SO THAT'S THE DECISION THAT THE UNIFORM LAW COMMISSION MADE RECOGNIZING THERE ARE OTHER PLACES THAT THAT DECISION COULD HAVE BEEN MADE.

CHRISTINA ESTES: THE LANGUAGE, DOES IT PROHIBIT AN EMPLOYER IN AN EDUCATIONAL INSTITUTION FROM ASKING ME OR DOES IT PROHIBIT THEM FROM REQUIRING ME?

SAMUEL THUMMA: GREAT QUESTION. IT PROHIBITS THE LATTER. IT PROHIBITS YOU FROM REQUIRING. THE ACT IS DESIGNED TO PREVENT COERCION. IN OTHER WORDS, IF A STUDENT IS ASKED TO FRIEND, TO USE A GENERIC TERM, TO ALLOW THE SCHOOL TO FRIEND THAT STUDENT, AND THE STUDENT WANTS TO, THEY CAN. SAME WITH AN EMPLOYER CONTEXT.

CHRISTINA ESTES: IF I DON'T WANT TO BE FRIENDS WITH MY BOSS ON SOCIAL MEDIA, I DON'T HAVE TO, RIGHT? I CAN SAY LOOK AT THIS.

SAMUEL THUMMA: THIS ACT SAYS, NO, YOU CAN'T UNLESS ANOTHER EXCEPTION APPLIES AND THEN IF YOU DECLINE THAT REQUEST THE ADVERSE CONSEQUENCES CAN'T PROPERLY BE IMPOSED UPON YOU.

CHRISTINA ESTES: WE HAVE ABOUT A MINUTE LEFT. WHAT ARE THE NEXT STEPS NOW?

SAMUEL THUMMA: SURE.

CHRISTINA ESTES: JUST START KNOCKING ON DOORS OF THE STATES AND SAY HEY HOW'S THIS?

SAMUEL THUMMA: ENACTMENT BECOMES THE NEXT PRIORITY. THE CASE HAS BEEN PROMULGATED, APPROVED AFTER AN ANNUAL MEETING IT WAS ANNOUNCED -- ACTUALLY I WAS GOING TO SAY THIS MONTH, BUT LAST MONTH IN NOVEMBER, AND IS AVAILABLE FOR STATES TO CONSIDER IF THEY WANT TO ADOPT IT IN THEIR STATE. WE HAVE INQUIRY -- RECEIVED INQUIRIES FROM OTHER STATES WHO ARE VERY INTERESTED IN THAT. THE HOPE IS TO GET A UNIFORM STATE OF LAWS AS OPPOSED TO STATE BY STATE.

CHRISTINA ESTES: WHAT SORT OF PENALTY FOR VIOLATORS IT?

SAMUEL THUMMA: ALLOWS A STATE ATTORNEY TO FILE A CLAIM FOR INJUNCTIVE RELIEF TO PROHIBT IT AND GET UP TO $100,000, A THOUSAND DOLLARS PER VIOLATION AND ALLOW A PRIVATE INDIVIDUAL TO GET COMPARABLE RELIEF AND MONETARY DAMAGES AS WELL AS AWARD OF ATTORNEY'S FEES IF THEY PREVAIL.

CHRISTINA ESTES: WE'LL HAVE TO KEEP OUR EYE OUT AND SEE WHAT HAPPENS IN ARIZONA. THEY GO ALONG WITH YOU AND THE COMMISSION.

SAMUEL THUMMA: WE'LL SEE.

Samuel Thumma, vice chief judge, Arizona Court of Appeals, Division 1

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