11.08.2013
Could California’s “Eraser Law” Undermine School Investigations of Alleged Online Misconduct?

Effective January 1, 2015, California minors can take advantage of SB 568’s “Eraser Law” when they desire to remove a post from a website, online service or application, or mobile application with which they are registered. While the new law was intended to provide minors with a way to remove posts made during youthful lapses in good judgment, schools cannot ignore online student misconduct falling within their jurisdiction, even if some of the evidence has been removed. To fail to properly investigate and address incidents of online misconduct simply because evidence has been removed could create the unintended side effects of perpetuating misconduct and even encouraging bad-actors to engage in harmful conduct. For example, teenage cyberbullies could post abusive or threatening messages and then use the statutorily guaranteed “eraser button” to cover their tracks.

Ultimately, the Eraser Law should not undermine school investigations into alleged online misconduct. As a preliminary matter, the Eraser Law is narrow in scope because it only applies to persons under 18 who are registered users of the online site, service, or application. Many who wish to take back their online posts are not minors, and many minors do not actually register when online. Additionally, the law “does not ensure complete or comprehensive removal of the content of information posted,” and it does not remove content or information stored or posted “by a third party other than the minor.” Moreover, many students already use sites, services, and applications which allow them to remove their own posts, so few students will have to rely upon the protections of this new law.

While the name “Eraser Law” implies that minors’ mistakes and the ensuing evidence can be erased, schools facing online incidents which they are obligated to investigate and/or address must continue to practice basic investigation procedures and should not be dissuaded by evidence which may have been removed. When investigating alleged harassment, bullying, sexting, or other such misconduct, for instance, there will often be a considerable amount of evidence from third parties, such as students who downloaded, viewed, re-posted, or received or heard about the data or information. Consequently, it is irrelevant that the student who engaged in the original misconduct has removed the evidence.

With any investigation into alleged online misconduct, it is crucial that the investigator follow a thorough and logical investigation process. Regardless of whether online evidence has been removed, the investigator must promptly gather the basic facts, including the identities of the persons involved, the nature and timing of the incident, where the communications originated and were distributed, and possible motives. If the investigator takes adequate time to plan and execute the investigation, crucial facts should be brought to light. Once the matter has been fully investigated, then it is the obligation of the institution to determine how to best proceed. Perhaps the minor’s action truly was a one-time mistake with a minimal impact which warrants a verbal warning. On the other hand, the student’s conduct could be pervasive and have severe consequences which must be addressed through a formal disciplinary process.

As currently worded, the Eraser Law is more likely to “white out” rather than completely erase crucial evidence. With a proper investigation, school investigators can scratch below the surface and uncover the truth, enabling administrators to address wrong-doing as necessary.

For further information about investigating incidents of online misconduct, contact our offices and inquire about ePROOF trainings for educational institutions.

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