Recent Trend: States Protect Individuals from Employers' and Universities' Logging into Their Social Media Accounts

California recently passed a law that protects individuals from having to give potential employers their login credentials for various social media accounts. The law also prohibits universities from demanding the information from prospective students. The California law is a recent example of numerous states’ laws designed to protect employees/potential employees and students/prospective students.

The text of the employer law itself gives an incredibly broad definition of social media:

As used in this chapter, ‘social media’ means an electronic service or account, or electronic content, including, but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations.

The student protection bill has a slightly different definition of social media:

As used in this chapter, ‘social media’ means an electronic medium where users may create, share, and view user-generated content, including uploading or downloading videos or still photographs, blogs, video blogs, podcasts, instant messages, or Internet Web site profiles or locations.

 While the two definitions are different, they seemingly cover the same types of social media and should be broad enough to cover all forms of social media existing or possibly created in the future.

Maryland was the first state to enact a law of this type, in May of 2012, and the provisions have gone into effect as of October 1, 2012. The law goes about protecting employees by not defining social media, but by protecting employees’ personal accounts.

Several other states have created laws protecting similar employees’ social media accounts, such as Illinois and Delaware. Several other states, including Massachusetts and New York have bills currently in the legislatures or in a committee, waiting to be passed.

The impacts of these new laws on businesses are clear. Businesses can no longer demand that employees hand over username and passwords to personal social media accounts. Therefore, in order to try to find individuals profiles and posts, employers will have to spend significantly more time and resources. The laws also show that states believe that individuals’ social media accounts are something that should be protected from employers and that this is part of a privacy right of citizens.

In addition, to state actions, the National Labor Relations Board has shown that the board is willing to step in and protect employers’ ability to use social media. A September decision by the board struck down a Costco rule that broadly limiting Costco employee use of social media. The board’s decision shows a continued effort by the federal government to protect the right of social media users.

(Written by Brett Alazraki, Fall 2012 IBLT Entrepreneurship Assistance Fellow)