1. Technology Legal Issues: School Districts in the Electronic Age Thursday, April 14, 2016 Room: 204 Part I: 3:00 p.m.-4:00 p.m. Part II: 4:15 p.m.-5:15 p.m. Presented by: Harold M. Freiman, ESQ Devon B. Lincoln, ESQ

2. Presenter’s Information Harold M. Freiman Lozano Smith 2001 North Main St., Suite 500 Walnut Creek, CA 94596 (925) 953-1620 hfreiman@lozanosmith.com Devon B. Lincoln Lozano Smith 4 Lower Ragsdale Dr., Suite 200 Monterey, CA 93940 (831) 646-1501 dlincoln@lozanosmith.com

3. Today we will cover: Public Records Act Email and Record Retention Cloud Computing Employee /Student Discipline for Misuse of Technology

4. Did You Know? There are more Facebook users today than there were people on Earth in 1800 71% of online adults (ages 18+) in the U.S. use Facebook as of 2014

5. 95% of all teens (ages 12-17) are now online as of September 2012 8 out of 10 teens own a laptop or desktop (of the remaining 20%, two-thirds have access to one at home) Did You Know?

6. The number of text messages sent and received every day exceeds the population of the planet Earth has 7.295 billion people as of 2015 Did You Know?

7. You would need to live for around 1,000 years to watch all the videos currently on YouTube! 48 hours of video are uploaded every minute, resulting in nearly 8 years of content uploaded every day. Did You Know?

8. Public Records Act

9. Constitutional right of access to information What are public records? –Any writing containing information relating to conduct of public’s business, regardless of physical form Who may request records? –All “persons” have right to inspect; need not be resident of CA; can be business entity Public Records Act: Overview

10. Agency must allow access unless exemption applies There are 21 statutory exemptions, including: *All have certain exceptions Exemptions To PRA Requests DraftsOfficial information privilege Attorney-client privilegePersonnel records Pending litigationPublic interest (“catch-all”) Recipients of public services

11. Electronic Records –Agency must provide records in electronic format, if requested. –Includes metadata, geographic information system records. PRA Records Management

12. Outdated regulations –Emails not mentioned, but are likely included Current regulations –Before January 1, superintendent or designee, should review the previous year’s records and classify them as: Class 1: Permanent Class 2: Optional Class 3: Disposable Records “of continuing nature” PRA Records Retention

13. How does this all apply to electronic documents and email? –Not very well! To purge or not to purge? –Print up or electronically save all business email (complies with law) –Purge all email after set periods of time (e.g. 90 days) PRA Records Retention

14. Last week you received an email from a local newspaper requesting digital copies of the emails sent from your district email account during the last two years. 1.Are internal district emails public records? 2.What if you delete emails after 90 days? 3.Are the emails you sent non-work friends from your district email using your district computer public records? 4.Are work emails sent from your personal email account using your smart phone public records? Hypothetical

15. How does the PRA apply to electronic documents and emails? What is your District’s email retention policy? Do you want one? Don’t put a statement in writing – including email – unless you are prepared to have it quoted in the newspaper Emails As Public Records

16. City of San Jose v. Superior Court (2014) 225 Cal. App. 4th 475 Emails As Public Records Private communications sent on personal devices that are not stored on a public agency’s servers are not subject to a PRA request…BUT case is on appeal.

17. Bertoli v. City of Sebastopol (January 30, 2015) 2015 Cal. App. Lexis 98 Emails As Public Records Reiterates that many issues around CPRA requests for emails remain unsettled.

18. Bring Your Own Device Pros: Improved productivity Cons: –Security issues –Questions remain after City of San Jose v. Superior Court, which is currently on appeal before the CA Supreme Court Public Agencies should consider setting policies Do You BYOD?

19. Cloud Computing

20. Adventures In Cloud Computing

22. A Silver Lining To The Cloud California law now addresses issues regarding pupil records, student privacy rights, and third party contracts related to cloud computing, digital storage, and digital educational software: Education Code section 49073.1 (AB 1584) Education Code section 49073.6 (AB 1442) Business and Professions Code section 22584 (SB 177)

23. Education Code section 49073.1 (AB 1584) Provider/vendor contracts must include the following nine provisions : 1.Student records are property of district 2.Students retain control over pupil-generated information 3.Prevent third parties from using information for any purpose other than what contract specifies 4.Describe process allowing parents to review and correct personally identifiable information

24. Education Code section 49073.1 (AB 1584) Contracts must include the following nine provisions (cont.) : 5.Describe actions vendor will take to ensure confidentiality 6.Describe process to notify parents regarding security breach 7.Certification that pupil records will not be retained upon completion or termination of agreement 8.Describe compliance with FERPA 9.Prohibits advertising targeted at students

25. Limits the types of information a district may collect from social media sources regarding students If a district considers establishing a program to collect information from social media sources regarding students, it must first notify parents and give them the opportunity to comment on the proposal Education Code section 49073.6 (AB 1442)

26. Bus. & Prof. Code 22584 (SB 1177) Requires operators of educational internet websites, online services, online applications and mobile applications to refrain from practices that compromise the security of student information or impinge on student privacy.

27. Hypothetical You have reviewed an educational software licensing agreement which contains provisions allowing the company to: (1) mine pupil data to improve its educational products; (2) retain all intellectual property rights from #1; and (3) sell de- identified pupil data. 1. Should the District enter this agreement? 2. What’s the difference between the type of data in #1 and #3? Does it matter? 3. Does the District have any intellectual property rights?

28. Purchasing Technology Applies to a District’s procurement of computers, software, telecommunications equipment, microwave equipment and other related electronic equipment and apparatus. Does not apply to contracts for construction or for the procurement of any product that is available in substantial quantities to the public. GC§20118.2

29. Learning Management Systems LMS software provides digital space for: documentation, tracking, online teacher education and training. Driven by Common Core standards - Supports contemporary education reforms with technology

30. Federal E-Rate Program The Federal Communications Commissions approved a plan to modernize its E-rate program in July 2014 Schools and libraries now have more options for purchasing affordable high-speed broadband connectivity

31. Employee Misuse of Technology

32. Hypothetical # Will a district employee face discipline for being seen smoking after school hours? In 1927, yes. School teacher Helen Clark of Seacaucus, N.J. lost her teaching license.

33. Hypothetical In 2016, will a district employee face discipline for posting the following Facebook message after school hours?

34. Employee Discipline Grounds to discipline: On campus? Off campus? Nexus between conduct and employee’s position?

35. Employee Discipline Is speech constitutionally protected? Made pursuant to official duties? Made as private citizen? Regarding matter of public concern? Regarding matter of private concern? Balance employee’s interest vs. state’s interest

36. The Craigslist Ad San Diego Unified School District v. Commission on Professional Competence (2011) 194 Cal. App. 4th 1494

37. The Facebook Post In 2010, a NYC math teacher was suspended for posting the following:

38. Student Misuse of Technology

39. Student Online Activity Grounds for discipline? Jurisdiction?

40. Recent Legislation Regarding Student Discipline for Misuse of Technology AB 881 SB 178

41. AB 881 Addressing an inadvertent drafting error in prior legislation Amends the definition of “electronic act” in Education Code section 48900 by changing the phrase “creation and transmission” to “creation or transmission.” Removes the argument that a student must be both the creator and the transmitter of the bullying content to be subject to discipline. Districts still faced with jurisdiction issues.

42. SB 178 SB 178 appears to change the standard for searches by District administrators of student electronic devices. Contact legal counsel for guidance before searching any electronic devices in the possession of staff or students, and/or work with counsel to develop guidelines/ ground rules in advance.

43. Questions 43

44. Conference Handouts 44 For a copy of all Lozano Smith CASBO Conference presentations, please visit: LozanoSmith.com/CASBO

45. 45 Disclaimer: These materials and all discussions of these materials are for instructional purposes only and do not constitute legal advice. If you need legal advice, you should contact your local counsel or an attorney at Lozano Smith. If you are interested in having other in-service programs presented, please contact clientservices@lozanosmith.com or call (559) 431-5600. Copyright © 2016 Lozano Smith All rights reserved. No portion of this work may be copied, or sold or used for any commercial advantage or private gain, nor any derivative work prepared there from, without the express prior written permission of Lozano Smith through its Managing Partner. The Managing Partner of Lozano Smith hereby grants permission to any client of Lozano Smith to whom Lozano Smith provides a copy to use such copy intact and solely for the internal purposes of such client.