North Carolina Infractions Case Establishes Social Media Monitoring Principles
The March 12, 2012, NCAA Division I Committee on Infractions report regarding the University of North Carolina (UNC) addressed the traditional compliance issues of academic fraud, extra benefits, and agents. However, for the first time, the Committee also considered and discussed an institution's duty to monitor social media.
The enforcement staff alleged that UNC fell short of its monitoring obligation pursuant to NCAA Constitution 2.8.1 because the University "did not adequately and consistently monitor social networking activity that visibly illustrated potential amateurism violations within the football program." Although the Committee did not specifically find that UNC failed to sufficiently monitor social networks, the Committee made the following statements about an institution's duty to monitor social media:
"The committee declines to impose a blanket duty on institutions to monitor social networking sites. Consistent with the duty to monitor other information outside the campus setting (beyond on-campus activities such as countable athletically related activities, financial aid, satisfactory progress, etc.), such sites should be part of the monitoring effort if the institution becomes aware of an issue that might be resolved in some part by reviewing information on a site."
"[I]f the institution receives information regarding potential rules violations, and if it is reasonable to believe that a review of otherwise publically available social networking information may yield clues to the violations, this committee will conclude that the duty to monitor extended to the social networking site."
"The committee recognizes that social networking sites are a preferred method of communication in present society, particularly so among college-age individuals. While we do not impose an absolute duty upon member institutions to regularly monitor such sites, the duty to do so may arise as part of an institution's heightened awareness when it has or should have a reasonable suspicion of rules violations. If the membership desires that the duty to monitor social networking sites extend further than we state here, the matter is best dealt with through NCAA legislation." (Public Infractions Report, pp. 11-12, emphasis added)
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The Committee's statements established three guiding principles:
(1) Institutions do not have a "blanket duty" to monitor social networking sites.
(2) A duty to monitor social networking arises in two circumstances: (i) if the institution becomes aware of an issue that might be resolved in some part by reviewing information on a site; or (ii) if the institution receives information regarding potential rules violations and it is reasonable to believe that a review of otherwise publically available social networking information may yield clues to the violations.
These circumstances require institutional awareness of an issue or the receipt of information. They also require that the relevant compliance concern "might be resolved in some part" by social network monitoring or that it is "reasonable to believe" that such monitoring "may yield clues" about the potential violation.
(3) A social network monitoring duty "may arise" when an institution has or should have a reasonable suspicion of rules violations.
This circumstance does not appear to require actual institutional awareness or the receipt of particular information, nor does it require that social network monitoring might help clarify the relevant concern.
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Like many Committee decisions of first impression, the report established what is not required (i.e., a "blanket duty" to monitor), but it left a number of unanswered questions, including what constitutes a "reasonable suspicion" of a violation. Until a developed body of NCAA legislation, interpretations, and case precedent emerges, there is a risk that an institution's social media monitoring duty may be more apparent in hindsight than in real time. Meanwhile, the enforcement staff will have great discretion to charge failure to monitor based on a perceived monitoring insufficiency, and the Committee will have wide latitude to make such a finding.
Therefore, despite the uncertainties, institutions should develop monitoring protocols consistent with the Committee's principles. For example, when a social network monitoring duty is triggered, an institution needs a protocol that accounts for, among other factors, (i) the identification of what social media platforms and sites should be monitored, (ii) the frequency with which sites should be checked, (iii) the duration of the monitoring period, (iv) who is responsible for performing the monitoring, (v) whether a student-athlete or third party should be requested or required to provide the monitor with greater site access by accepting the monitor as a "friend" or "linking-in" the monitor (note: the UNC report refers to "otherwise publicly available information"), and (vi) what words, phrases, locations, or names should trigger further inquiry. Furthermore, institutions must be careful not to devise protocols without considering additional factors such as state social media law, the institution's public or private status, and the institution's need to guard against potential legal liability from assuming a duty to monitor and act upon non-athletics information which may be revealed once the institution begins monitoring for NCAA compliance purposes.
There is no simple or "cookie-cutter" social media monitoring plan that will fit every institution. However, given the enforcement staff's increasing use of "desktop investigators" and information developed from websites and mobile applications in its investigations, an increase in the number of institutional failure to monitor allegations based upon perceived shortfalls in monitoring social media is possible. Institutions should anticipate this trend and prepare accordingly.
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.