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.
- Partner
Chesley Quaide focuses on education law and labor relations and employment/labor law. He served as General Counsel of the Merced County Office of Education from 1991-2004, and has served as General Counsel of the Stanislaus ...
Other AALRR Blogs
Recent Posts
- Brown Act — Confidentiality of Closed Session Information
- Leading and Managing Employees Remotely: Telecommuting in Education
- Is Your Website ADA-Compliant? Web Accessibility Lawsuits May Soon Be On the Rise as California High Courts Expand the Reach of the Americans with Disabilities Act and the Unruh Civil Rights Act
- Proactive Steps to Combat Microaggressions and Unconscious Bias in the Workplace
- “But It’s on the Internet!” You Still Need a License to Use that Photo!
- U.S. Supreme Court Lets Stand School District Policy Supportive of Transgender Students
- Failure to Comply with the EEOC’s Claim-filing Requirements May Not Bar Courts from Hearing Discrimination Cases
- New Bill Would Expand Ban on Suspensions for “Willful Defiance”
- New Developments in Ongoing Website Accessibility Litigation
- Will Smartphones in Classrooms Be a Thing of the Past?
Popular Categories
- (96)
- (51)
- (80)
- (42)
- (53)
- (20)
- (40)
- (7)
- (6)
- (22)
- (8)
- (3)
- (3)
- (1)
- (4)
- (1)
- (1)
- (1)
- (1)
- (1)
- (1)
- (1)
- (1)
Contributors
- Lisa R. Allred
- Steven J. Andelson
- Christopher S. Andre
- Ernest L. Bell
- William M. Betley
- Mark R. Bresee
- W. Bryce Chastain
- Andreas C. Chialtas
- Georgelle C. Cuevas
- Kevin R. Dale
- Scott D. Danforth
- Alexandria M. Davidson
- Mary Beth de Goede
- Anthony P. De Marco
- Peter E. Denno
- William A. Diedrich
- A. Christopher Duran
- Amy W. Estrada
- Jennifer R. Fain
- Eve P. Fichtner
- Paul S. Fleck
- Mellissa E. Gallegos
- Karen E. Gilyard
- Todd A. Goluba
- Jacqueline D. Hang
- Davina F. Harden
- Martin A. Hom
- Suparna Jain
- Jonathan Judge
- Tina L. Kannarr
- Warren S. Kinsler
- Nate J. Kowalski
- Michele A. Landenberger
- Alex A. Lozada
- Kimberly C. Ludwin
- Bryan G. Martin
- Paul Z. McGlocklin
- Stephen M. McLoughlin
- Anna J. Miller
- Marilou F. Mirkovich
- Jacquelyn T. Morenz
- Joshua E. Morrison
- Kristin M. Myers
- Adam J. Newman
- Anthony P. Niccoli
- Aaron V. O'Donnell
- Sharon J. Ormond
- Gabrielle E. Ortiz
- Chesley D. Quaide
- Elizabeth J. Rho-Ng
- Todd M. Robbins
- Irma Rodríguez Moisa
- Brooke Romero
- Alyssa Ruiz de Esparza
- Scott J. Sachs
- Gabriel A. Sandoval
- Peter A. Schaffert
- Constance J. Schwindt
- Justin R. Shinnefield
- Amber M. Solano
- David A. Soldani
- Constance M. Taylor
- Mark W. Thompson
- Jonathan S. Vick
- Jabari A. Willis
- Sara C. Young
- Elizabeth Zamora-Mejia
Archives
2020
2019
2018
- December 2018
- September 2018
- August 2018
- July 2018
- June 2018
- May 2018
- April 2018
- March 2018
- January 2018
2017
- November 2017
- October 2017
- August 2017
- July 2017
- June 2017
- May 2017
- April 2017
- March 2017
- February 2017
- January 2017
2016
- November 2016
- October 2016
- September 2016
- August 2016
- July 2016
- June 2016
- May 2016
- April 2016
- March 2016
- February 2016
- January 2016
2015
- December 2015
- November 2015
- October 2015
- September 2015
- August 2015
- July 2015
- June 2015
- May 2015
- April 2015
- March 2015
- February 2015
- January 2015
2014
- December 2014
- November 2014
- October 2014
- September 2014
- August 2014
- July 2014
- June 2014
- May 2014
- April 2014
- March 2014
- February 2014
- January 2014
2013
- December 2013
- November 2013
- October 2013
- September 2013
- August 2013
- July 2013
- June 2013
- May 2013
- April 2013
- March 2013
- February 2013
- January 2013
2012
- December 2012
- November 2012
- October 2012
- September 2012
- August 2012
- July 2012
- June 2012
- May 2012
- April 2012
- March 2012
- February 2012
- January 2012