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A recently-passed law in Missouri attempts to ban teachers from friending students on social network websites. According to the Amy Hestir Student Protection Act:

By January 1, 2012, every school district must develop a written policy concerning teacher-student communication and employee-student communications. Each policy must include appropriate oral and nonverbal personal communication, which may be combined with sexual harassment policies, and appropriate use of electronic media as described in the act, including social networking sites. Teachers cannot establish, maintain, or use a work-related website unless it is available to school administrators and the child’s legal custodian, physical custodian, or legal guardian. Teachers also cannot have a nonwork-related website that allows exclusive access with a current or former student. (Emphasis added)

Although I often recommend that teachers do not friend students who are attending school, I do so as a recommendation. This law attempts to do so as a requirement. And by doing so in this manner, courts are likely to find the law unconstitutional.

The law is likely unconstitutionally vague. A vague law or policy is one that either fails to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits; or authorizes or encourages arbitrary and discriminatory enforcement. Because it is unclear about who constitutes a “student” as well as what constitutes “exclusive access” it will likely be deemed vague by the courts. For example, who counts as a “student’? A student in the teacher’s class? In the teacher’s school? In the teacher’s district? In any school of any time anywhere? The law is extremely vague.

The law is also over-broad. An over-broad law restricts too much speech beyond that which is necessary to achieve its purpose. The purpose of the Amy Hestir Student Protection Act is to prevent school employees from engaging in improper sexual conduct with students, but the ban on website communication is a broad measure that extends far beyond this purpose. Although it may be unwise for teachers to friend students on social media sites, students and teachers have First Amendment free speech and free association rights outside of school.

The law also fails to make any exceptions when teachers and students are related. What if the teacher has a child who attends the teacher’s school? Does that mean that a parent can’t friend his or her own child on a social media site? What if the teacher is related to the student (an older sister, a grandparent, an uncle, a cousin) and wants to friend the student?

I would be surprised if this law survived a constitutional challenge in court.

Originally Posted at Huffington Post

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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.

Professor Solove is the organizer, along with Paul Schwartz, of the Privacy + Security Forum and International Privacy + Security Forum, annual events designed for seasoned professionals.

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