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Legal update: State social media laws and implications on employer access to social passwords and data [UPDATED]

By:
Yasmin Zarabi, Esq.

Disclaimer: The material available on this blog is for informational purposes only and not for the purpose of providing legal advice. We make no guarantees on the accuracy of the information provided herein.

Multiple states have passed laws or are actively considering legislation limiting the rights of employers to request or require employees to provide social media site user ID, passwords, or data. Laws go into effect as early as October 1, 2012 (Maryland) while an Illinois law has an effective date of January 1, 2013. See below for more detailed information on individual state laws.
As you know, our technology prompts employees to provide login credentials. At no point do employers have access to these login credentials; however, employers do have access to the contents of the communications, images, or other data associated with the login credentials as required by regulatory bodies such as FINRA and the SEC. We believe that voluntary participation in social media programs for business use, and employers’ resulting supervision and retention of this social media data, is appropriate and indeed necessary in many regulated industries or for other legal requirements.
Nevertheless, we caution our customer base and other organizations to carefully track legislative developments in the state jurisdictions applicable to your workforce, to seek independent outside legal advice, and to maintain updated policies and procedures consistent with these new laws. Unfortunately, a number of the laws are vaguely worded, and/or do not give definitions of key concepts such as “data” and “communications,” making it impossible for us to issue generic guidance about the effects of these laws. While some of the laws contain important exemptions for internal investigations and other necessary activities, others do not, thus necessitating the requirement to seek outside counsel in your region(s).
We write to assure you that we and our counsel are tracking these legislative developments closely and are seeking ways to influence state legislators and federal regulators so that these legitimate, compliance-oriented efforts to use social media can continue. Please contact legal@hearsaycorp.com with any questions or concerns about these important legal developments.

SIFMA and FINRA’s Stance on State Social Media Laws

Disclaimer: The links to the third-party sites provided herein are offered as a convenience to our customers and site visitors and do not constitute an endorsement, recommendation, or guarantee of accuracy. We assume no liability for the content provided.

Excerpted from SIFMA News Bulletin:

The Financial Industry Regulatory Authority (FINRA) and Securities Industry and Financial Markets Association (SIFMA) lobbied against the bill out of concern that it may conflict with rules set by FINRA requiring securities firms to supervise, record, and maintain business-related communications. SIFMA, in a June 22 letter, said the organization wanted “to be clear that the securities industry has no interest in accessing employee accounts that are used exclusively for personal use.” “The problem, however, is that many people use the same account for both personal and business activity,” it wrote.
According to a legislative staff analysis of the California bill, the conflict cited by FINRA does not exist because the organization is a private, self-regulatory body, and its rules are not federal statutes or regulations. Further, the legislative analysis said the bill does not conflict with FINRA because its rules obligate employers to supervise and retain communications only if they permit employees to use accounts for business purposes.

Text of SIFMA’s letter
Text of FINRA’s letter

Summary of State Laws or Proposed State Laws Regarding Employee Right to Privacy on Social Media

Last updated: February 7, 2013

Disclaimer: We are providing the following information on the various state laws for informational purposes and we do not guarantee accuracy or completeness of laws or information included. We assume no liability for the content provided. For the most updated information, please refer to the National Conference of State Legislators.

California

AB 1844: Prohibits employers from requiring an employee or a prospective employee to disclose a user name or account password to access a personal social media account that is exclusively used by the employee or prospective employee

  • 9/27/12: Signed by Governor; EFFECTIVE JAN 1, 2013.

SB 1349: Prohibits a postsecondary educational institution and an employer, whether public or private, from requiring, or formally requesting in writing, a student or an employee, or a prospective student or employee, to disclose the user name or account password for a personal social media account, or to otherwise provide the institution or employer with access to any content of that account

  • 8/24/12: Enrolled and sent to Governor; silent as to date of effectiveness

Exclusions: reasonably relevant to investigation related to employee misconduct or violation of law or regulation; employer IT

Colorado

HB 13-1046: Prohibits employers from requiring an employee or applicant to disclose their username, password, or other means for accessing a personal social media account.
Exclusions: non-personal accounts or services that provide access to the employers internal computer or information systems.   Also, this bill makes an exception for investigation relating to compliance with securities, financial law, or suspected unauthorized disclosure of proprietary information.

  • EFFECTIVE May 1, 2013.

Delaware

HB 309: Prohibits a public or nonpublic academic institution from mandating that a student or applicant disclose password or account information granting the academic institution access to the student’s or applicant’s social networking profile or account; prohibits academic institutions from requesting that a student or applicant log onto.
Exclusions: investigations of suspected criminal activity performed by a public or nonpublic academic institution’s public safety department or police agency or an investigation, inquiry or determination conducted pursuant to an academic institution’s threat assessment policy or protocol

  • 7/20/12: Signed by Governor; EFFECTIVE UPON ENACTMENT

HB 308: Prohibits employers from mandating that an employee or applicant disclose password or account information that would grant the employer access the employee’s or applicant’s social networking profile or account; prohibits employers from requesting that employees or applicants log onto their respective social networking site profiles

  • 6/21/12: Pending in House; amendment HA 2 introduced and placed with bill

Illinois

HB 3782: Amends the Right to Privacy in the Workplace Act by providing that it shall be unlawful for any employer to ask any prospective employee to provide any username, password, or other related account information in order to gain access to a social networking website where that prospective employee maintains an account or profile
Exclusions: lawful workplace policies regarding IT; routine IT monitoring; public domain

HB 5713: Amends the Right to Privacy in the Workplace Act by providing that it is unlawful for any employer to ask any prospective employee to provide any username, password, or other related account information in order to gain access to a social networking website where that prospective employee maintains an account or profile

  • 2/16/12: Referred to House Comm. on Rules

Maryland

HB 964 / SB 433: Prohibits an employer from requesting or requiring that an employee or applicant disclose any user name, password, or other means for accessing a personal account or service through specified electronic communications devices.
Exclusions: investigation to ensure compliance with securities or financial law or regulations; unauthorized transmittal of data to personal account

  • 5/02/12: Signed by Governor into law; EFFECTIVE 10/01/2012

Massachusetts

House Docket 4323: Prohibits any employer from asking any employee or prospective employee to provide password or any related account information in order to gain access to social media profile or e-mail
Exclusions: public domain; lawful workplace IT policies

  • 3/12/12: Filed
House Docket 503: Relates to social network privacy and employment.
  • 1/15/13: Introduced

Michigan

HB 5523: Prohibits employers and educational institutions from requiring certain individuals to disclose information that allows access to certain social networking accounts; prohibits employers and educational institutions from taking certain actions for failure to disclose information that allows access to certain social networking accounts
Exclusions: employer devices or accounts; unauthorized transfer of proprietary material; investigation to ensure compliance with laws or regulations; lawful pre-hire employee background checks

  • 12/31/2012 Approved by Governor after passage by LegislatureEFFECTIVE 12/31/2012

HB 5623: Prohibits employers and educational institutions from requiring certain individuals to disclose information that allows access to certain personal data storage accounts, such as social networking accounts; prohibits employers and educational institutions from taking certain actions for failure to disclose information that allows access to certain personal data storage accounts

  • 5/10/12: Referred to House Comm. on Energy & Technology

Minnesota

HB 2963: Prohibits employers from requiring social network passwords as a condition of employment

  • 3/26/12: Referred to House Comm. on Commerce & Regulatory Reform

Exclusions: lawful workplace IT policies

HB 2982: Prohibits employers from requesting or requiring social network user names, passwords, or related information

  • 3/29/12: Referred to House Comm. on Commerce & Regulatory Reform

Exclusions: lawful workplace IT policies

SF 2565: Prohibits employers from requiring social network passwords as a condition of employment

  • 3/27/12: Referred to Senate Comm. on Jobs & Economic Growth

Exclusions: lawful workplace IT policies

HB 293: Relates to employment; prohibits employers from requiring social network passwords as a condition of employment

  • 2/4/13: To House Committee on Labor, Workplace and Regulated Industries

Mississippi

HB 165: Prohibits employer from obtaining passwords or other account information to gain access to social networking sites of employees and prospective employees; provides penalties for violations.

  • 1/14/13: To House Committee on Judiciary A

Missouri

HB 2060: Prohibits an employer from requesting or requiring an employee or applicant to disclose any user name, password, or other means for accessing a personal account or service through electronic means

  • 4/30/12: Referred to House Comm. on Rules

Exclusions: employer internal IT systems

 HB 115: Prevents repercussions on employees or prospective employees for failure to disclose private information to the employer.
  • 1/9/13: Introduced.

SB 164Protects employees from being required to disclose personal user names or passwords.

  • 1/17/13; Introduced.

Montana

SB 195: Revises laws protecting job applicant and employee privacy related to social media; relates to labor and employment; relates to privacy.

  • 1/26/13: To Senate Committee on Judiciary.

Nebraska

LB 58: Adopts the Workplace Privacy Act.

  •  1/14/13: To Legislative Committee on Business and Labor.

New Hampshire

HB 379: Prohibits an employer from requiring a prospective employee to disclose his or her social media passwords.

  • 1/3/13: To House Committee on Labor, Industrial and Rehabilitative Services. Filed as LSR 82.

HB 414: Prohibits an employer from requiring an employee or prospective employee to disclose his or her social media passwords.

  • 1/22/13: To House Committee on Labor, Industrial and Rehabilitative Services. Filed as LSR 505.

New Jersey

AB 2878: Prohibits requirement to disclose user name, password, or other means for accessing account or service through electronic communications device by employers
Exclusions: compliance with law or regulation; lawful workplace IT policies

  • 11/12/12: Passed Senate. Received in the Assembly, 2nd Reading on Concurrence.

AB 2879: Prohibits requirement to disclose user name, password, or other means for accessing account or service through electronic communications devices by institutions of higher education

  • 5/10/12: Reported out of Assembly Comm. for 2nd reading

SB 1898: Prohibits requirement to provide information for access to account on social networking website by employer

  • 9/20/12: From Senate Committee on Labor as combined. For further action see SB 1915.

SB 1915: Prohibits requirement to disclose user name, password, or other means for accessing account or service through electronic communications device by employers

  • 10/25/12: Substituted by A2878.

SB 1916: Prohibits requirement to disclose user name, password, or other means for accessing account or service through electronic communications devices by institutions of higher education

  • 5/14/12: Referred to Senate Comm. on Labor

New Mexico

SB 371: Relates to employment; prohibits prospective employers from requesting or requiring a prospective employee to provide a password or access to the prospective employee’s social networking account.
  • 1/31/13: To Senate Committee on Judiciary.

New York

AB 443: Prohibits an employer from requesting that an employee or applicant disclose any means for accessing an electronic personal account or service.
  • 1/9/13: To Assembly Committee on Labor.

SB 1701: Protects the privacy of employees’ and prospective employees’ social media accounts

  • 1/9/13: To Senate Committee on Labor.
SB 2434: Prohibits an employer from requesting or requiring that an employee or applicant disclose any user name, password, or other means for accessing a personal account or service through specified electronic communications devices

  • 1/17/13: To Senate Committee on Labor.

North Dakota

HB 1455: Relates to Internet accounts and workplace privacy of social media accounts.

  • 1/21/13; To House Committee on Industry, Business and Labor

Ohio

SB 351: Prohibits employers, employment agencies, personnel placement services, and labor organizations from requiring an applicant or employee to provide access to private electronic accounts of the applicant or employee
Exclusions: lawful workplace IT monitoring

  • 6/12/12: Referred to Senate Comm. on Insurance, Commerce & Labor

Oregon

HB 2654: Prohibits employer from compelling employee or applicant for employment to provide access to personal social media account or to add employer to social media contact list; prohibits retaliation by employer against employee or applicant for refusal to provide access to accounts or to add employer to contact list; prohibits certain educational institutions from compelling student or prospective student to provide access to personal social media account

  • 1/14/13: Introduced.

SB 344: Establishes unlawful employment practice for certain actions taken by employer to access employee’s or prospective employee’s personal account on social networking website for employment purposes; declares emergency, effective on passage.

  • 1/14/13: Introduced.

Pennsylvania

HB 2332: Prohibits an employer from requesting or requiring that an employee or prospective employee disclose any user name, password or other means for accessing a private or personal social media account, service or Internet website
Exclusions: lawful workplace IT policies and monitoring; public domain information

  • 6/18/12: Referred to House Comm. on Labor & Industry

Rhode Island

HB 5255: Establishes a social media privacy policy for students and employees.

  •  2/5/13: To House Committee on Judiciary.

South Carolina

HB 5105: Prohibits an employer from asking an employee or prospective employee to provide a password or other related account information in order to gain access to the employee’s or prospective employee’s profile or account on a social networking website; the refusal of an employee or prospective employee to provide a password, account information, or access to his account or profile on a social networking website to an employer must not be the basis of personnel action including, but not limited to, employment, termination, demotion, or promotions of the employee
Exclusions: public domain information; lawful workplace IT policies

  • 3/29/12: Referred to House Comm. on Judiciary

Texas

HB 318: Relates to prohibiting an employer from requiring or requesting access to the personal accounts of employees and job applicants through electronic communication devices; establishes an unlawful employment practice.

  • 1/8/13: Introduced.

HB 451: Relates to restrictions on access to certain personal online accounts through electronic communication devices by employers or public or private institutions of higher education. Establishes an unlawful employment practice.

  •  1/10/13: Introduced.

SB 118: Prohibits an employer from requiring or requesting access to the personal accounts of employees and job applicants through electronic communication devices; establishing an unlawful employment practice.

  • 1/8/13: Introduced.

Utah

HB 100: Modifies provisions addressing labor in general and higher education to enact protections for personal Internet accounts; enacts the Internet Employment Privacy Act, including defining terms, permitting or prohibiting certain actions by an employer; provides that the chapter does not create certain duties; provides private right of action; enacts the Internet Postsecondary Education Privacy Act.

  • 1/31/13: Introduced.

Vermont

SB 7:Relates to social networking privacy protection.

  • 1/11/13: To Senate Committee on Economic Development, Housing and General Affairs. 

Washington

SB 5211:Concerns social networking accounts and profiles.

  •  1/23/13: To Senate Committee on Commerce and Labor.

Yasmin Zarabi

Yasmin is responsible for Hearsay's legal affairs including commercial, compliance, regulatory and privacy matters. She is a thought leader in compliance for financial services, has been published in industry press and speaks at events around the world.

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