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Federal, state legislators move to protect social media passwords

April 8th, 2012  |  Sheryl Allenson

While employers edge closer into the private cyber world of employees and those who aspire to become employees, legislators are lining up like ducks in a row to throw up legislative blockades to the evolving practice of requiring individuals to disgorge their passwords to social media sites.  Illinois, Washington, California and Minnesota have all introduced legislation to protect the almighty password, and in some cases, the legislation has already passed in at least one branch of the legislature.

 Notwithstanding the possibility of entering dangerous territory, publically accessible social media pages have been free game for many employers for some time. However, more recently, some employers have added disclosure of passwords to social media sites as a condition of employment. While it leaves applicants and employees in a quandary, it has incited legislators, both federal and state, to “password protect” the employee pool.

 For example, the Illinois House passed HB 3782, which amends the state Right to Privacy in the Workplace Act. While the bill expressly states that employers may continue to troll the public domain, it prohibits employers from requiring any employee or applicant “to provide any password or other related account information in order to gain access to the employee’s or prospective employee’s account or profile on a social media website or to demand access in any manner to an employee’s or prospective employees’s account or profile on a social media website.”

  “I was shocked to learn that some employers were demanding access to private social  network accounts of jobseekers, and then turning them away for refusing,” bill sponsor State Rep. La Shawn Ford (D) said. “Imagine a 62 year old jobseeker who looks much younger, who is then not hired when the employer finds out his or her true age through his Facebook page. This is clearly a backdoor  way to learn protected information about jobseekers, and it’s a completely unacceptable invasion of privacy.” The bill’s co-sponsor noted that while employer’s have a right to control their equipment, their needs to be a delineation when it comes to what employees and applicants do off hours. “This is an issue of privacy,” said State Rep. Mike Fortner (R ) “We need to keep separate what employees and potential employees do on their own time, off company hours. Employers have the right to control how their equipment is used and can view public information like anyone else. But there is not a need for personal information on a social networking site that doesn’t interfere with their workplace.”

A similar measure was introduced in the Washington Senate on April 4. According to its sponsor, State Senator Steve Hobbs, the  legislation, would make it illegal for any employer or potential employer to ask for either a password or any related account information in order to gain access to any social networking site maintained by a current or prospective employee. Hobbs said that the bill will protect both employers and employees. Employers would be shielded from possible lawsuits if they decided not to hire an applicant after viewing private information revealing the applicant’s age, sexual orientation or religious affiliation. The bill would impose a fine of $500 and attorneys’ fees for violations of the law.

Joining in the conversation are legislators from both California and Minnesota. At the end of last month, State Senator Leland Yee introduced legislation to stop employers from formally requesting or demanding employees or job applicants provide their social media usernames and passwords. He expanded his SB 1349 to prohibit the practice at public and private colleges and universities as well. “It is completely unacceptable for an employer or university to invade someone’s personal social media accounts,” said Yee. “Not only is it entirely unnecessary, it is an invasion of privacy and unrelated to one’s performance or abilities.”

“These outlets are often for the purpose of individuals to share private information with their closest friends and family,” said Yee. “Family photos and non-work social calendars have no bearing on a person’s ability to do their job or be successful in the classroom, and therefore employers and colleges have no right to demand to review it.”

The Maryland State Senate already passed a similar bill, and that State’s House is now considering legislation. Meanwhile, federal pols are not sitting on the sidelines, but instead are suggesting that employers who ask for passwords may be violating federal law. U.S. Senators Richard Blumenthal and Charles E. Schumer recently called on the EEOC and the U.S. Department of Justice to launch a federal investigation into the trend of demanding job applicants turn over their user names and passwords for social networking and email websites to gain access to personal information. The two have asked the agencies to consider whether the growing practice is illegal under federal law.  “I am alarmed and outraged by rapidly and widely spreading employer practices seeking access to Facebook passwords or confidential information on other social networks,” said Blumenthal. “A ban on these practices is necessary to stop unreasonable and unacceptable invasions of privacy. An investigation by the Department of Justice and Equal Employment Opportunity Commission will help remedy ongoing intrusions and coercive practices, while we draft new statutory protections to clarify and strengthen the law. With few exceptions, employers do not have the need or the right to demand access to applicants’ private, password-protected information.”

“Employers have no right to ask job applicants for their house keys or to read their diaries – why should they be able to ask them for their Facebook passwords and gain unwarranted access to a trove of private information about what we like, what messages we send to people, or who we are friends with?” said Schumer. “In an age where more and more of our personal information – and our private social interactions – are online, it is vital that all individuals be allowed to determine for themselves what personal information they want to make public and protect personal information from their would-be employers. This is especially important during the job-seeking process, when all the power is on one side of the fence. Before this disturbing practice becomes widespread, we must have an immediate investigation into whether the practice violates federal law – I’m confident the investigation will show it does. Facebook agrees, and I’m sure most Americans agree, that employers have no business asking for your Facebook password.”

Meanwhile, even Facebook has jumped in, indicating it might initiate legal action against employers who require applicants or employees to turn over their Facebook passwords. While employers must continue to navigate the intricacies of social media use among employees, it seems clear that a trend has been set in motion to legislate change to prevent employers from requiring applicants or employees from turning over their social media passwords. Employers beware, the tide is changing.