Social Media Law – The “Keep Your Hands Off My Password” Edition

Employer access of social media accounts owned by existing and potential employees continues to capture the interest of state and federal legislators. From law firm Downs Rachlin Martin:

“… just last month, Maryland became the first state to officially put a password privacy law ‘on the books.’ Maryland’s law, which goes into effect this October, provides that employers ‘may not request or require that an employee or applicant disclose any user name, password, or other means for accessing a personal account or service through an electronic communications device,’ although they may require employees to disclose analogous information they use for accessing their employers’ computer and information systems…

Currently at least a dozen other states – California, Delaware, Illinois, Massachusetts, Michigan, Minnesota, Missouri, New Jersey, New York, Ohio, South Carolina, and Washington – have legislation pending to address password privacy… At the federal level, the ‘Social Networking Online Protection Act’ (SNOPA) and the ‘Password Protection Act of 2012’ have recently been introduced in Congress.” (Lawmakers Take Aim At Password Privacy)

For your reference, a roundup of recent legal updates on the topic:

Facebook And Job Candidates: Lessons From ‘Office Space’ (Duane Morris LLP):

“Employers are increasingly using social media to evaluate job candidates during the hiring process. Responses to this growing practice have varied widely and include applicants deleting their accounts while interviewing (or permanently), scrubbing their profiles of all unprofessional information and images, and/or restricting access to or limiting the visibility of their accounts to a select group of ‘friends.’” Read on>>

Mitigating Risks: How to Limit Liability from the Use of Electronic Media (Ropers, Majeski, Kohn & Bentley):

“There’s a clash between the privacy rights of prospective applicants who are looking for a job and business owners who are looking to hire them. There is legislation that is now pending both in California and at the federal level that would restrict, if not prohibit, employers from asking for Facebook account information that includes passwords.” Read on>>

Click With Caution: What Employers Should Know Before Conducting Social Media Background Checks on Prospective Employees (Field Law)

“With the proliferation of social media sites such as blogs, Facebook, and LinkedIn, and their increasing prominence in the business realm, it is not surprising that employers have begun to access the information posted on these sites in the course of conducting background checks on prospective employees… However, legal risks may arise for employers even before the employment relationship has begun as a result of using social media websites to collect information about job candidates.” Read on>>

FTC Cracks Down On The Collection Of Social Media Data For Employment Decisions (Bryan Cave):

“Many employers wonder whether they should use job applicants’ public profiles on social-media sites, such as Facebook, to gain insight into their character and suitability for employment. Indeed a survey released this year indicates that in some industries, almost 40% of employers reviewed job candidates’ profiles on social media sites before making employment decisions. As the number of social media sites has increased some firms have made the process of checking a candidate’s on-line reputation across multiple sites easier by compiling data across social media platforms into a single report.” Read on>>

Employers Should Be Wary Of Information They Gather Online About Employees (Cole Schotz):

“Recent media and political attention have highlighted the issue of employers asking employees for social media passwords, although in practice such requests appear to be rare. Facebook’s Chief Privacy Officer, Erin Egan, has reported ‘a distressing increase in reports of employers or others seeking to gain inappropriate access to people’s Facebook profiles or private information.’ Such requests by employers may create bad press for companies, and it is likely the Equal Employment Opportunity Commission will soon issue guidance disfavoring such a practice. Likewise, such requests may violate the federal Stored Communications Act, if a court were to consider requiring employees to provide their passwords voluntarily to employers.” Read on>>

New Social Media Rule for New Jersey Employers Passes Assembly (Ramon Rivera):

“…employers’ use of social media is facing growing scrutiny by the media and lawmakers across the country. The New Jersey law, A-2878, would prohibit employers from requiring a prospective employee to provide their user name, password, or other information needed to access social networking sites like Twitter and Facebook. Employers who violate the law would face civil penalties of $1,000 for the first offense, and $2,500 for repeat violations.” Read on>>

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