Illinois bill allows courts to ban social media and demand access to accounts for juveniles charged with crimes

Senate Bill 2871 would give courts in Illinois the ability to ban juveniles’ access to social media and require them to turn over passwords to law-enforcement officials.

Illinois state lawmakers are considering a bill that could ban certain juveniles charged with crimes from accessing social media, and require them to give law-enforcement officials access to their accounts.

Senate Bill 2871 would allow courts to hold pretrial hearings to determine whether to ban a juvenile charged with a crime from accessing social media, and to require him or her to give the government access to his or her social media accounts.

This bill poses a serious threat to free speech and privacy rights.

First, the broad nature of a ban on the use of social media is problematic. Under existing law, courts may prevent a minor from associating with certain people such as gang members. But a ban on social media – an entire form of communication – is much different.

Prohibiting a juvenile from accessing social media prior to her trial and through the sentencing process, as this bill allows, would be equivalent to telling her not to speak with anyone in person. Such a ban would be unlikely to pass constitutional muster.

Second, there are serious privacy concerns associated with forcing a juvenile to give law enforcement access to her social media accounts. Such wide-ranging access could go far beyond the scope of the crime in question, and would also give the government access to information that other people may have shared with the expectation of limited access – sharing with friends only, for example.

In other words, the privacy of both the individual charged with the crime and anyone she interacts with on social media would be compromised.

“Everything is a balance,” state Sen. John Mulroe, D-Chicago, told the Chicago Tribune. Mulroe is the bill’s chief sponsor. “You don’t have a First Amendment right to just say whatever you want. It has to be within reason. You can’t yell ‘fire’ in a crowded theater.”

Mulroe’s analogy does not justify the broad scope of this bill. The crowded-theater example only shows how false statements likely to cause tangible and immediate harm are not protected by the First Amendment. It doesn’t justify shutting off an entire medium of communication for someone charged with a crime.

Unfortunately, when it comes to online communication, Illinois is no stranger to laws that overstep privacy boundaries, especially for young people.

Former Gov. Pat Quinn signed House Bill 4207 in August 2014. It went into effect Jan. 1, 2015. Under the law, school administrators can demand access to students’ Facebook, Twitter, Instagram or any other online accounts that may have been involved in a violation of school code. Whether these accounts were accessed or created during school hours or with school resources is irrelevant under the law.

The law’s stated purpose was to prevent cyberbullying, which often occurs outside of the classroom. However, perhaps blinded by good intentions, lawmakers who supported it completely disregarded legitimate privacy concerns of Illinois parents and students.

Illinois’ cyberbullying law is vague and primed for abuse. It also bucks a national trend toward preventing the forced sharing of access to social media accounts in settings such as the workplace.

According to Motherboard, the Illinois Principals Association released a model letter detailing the law’s effects in practice. The letter states that school authorities can require a student, or his or her parent, to provide the school with account information if officials “have reasonable cause to believe that a student’s account on a social networking website contains evidence that a student has violated a school disciplinary rule or procedure.”

As Chris Matyszczyk at CNET said, “Those of sharp eyes and, perhaps, parenting experience, will wonder just what private information the schools might encounter as they search for their alleged evidence.”

Interestingly, Illinois bans schools from asking college students for their passwords.

The legislative overreach found in the Illinois cyberbullying law is likely to eventually be challenged in the courts.

In 2012, Minnesota sixth-grader Riley Stratton sued her school district after she claimed she had been coerced into giving up her Facebook password. As part of a settlement the school district paid out $70,000 in damages and rewrote its privacy rules.

Kade Crockford, a director at the American Civil Liberties Union of Massachusetts, raised her concerns to Motherboard regarding Illinois’ cyberbullying law.

“Anytime a school is trying to control students’ behavior outside school, it’s a serious threat to their privacy and to their futures,” she said.

“You have to think about the school-to-prison pipeline—who will be affected by this legislation, who will be arrested in school as a result of information discovered by administrators on their phones? … It’s kids of color, poor kids, kids with intellectual and learning disabilities. That’s what we see across the country.”

Illinoisans should keep this in mind as Springfield mulls over the latest threat to free speech and privacy when it comes to online communication.