52
NEWS
ACT
SEPTEMBER 2013
At face value, it sounds like obvious
invasion of privacy, and probably not
worth the risk. But that doesn’t mean
it isn’t happening, and though laws to
protect folks might have only recently
begun to emerge, it seems that states are
rapidly catching up.
Maryland put into place the nation’s first
“social media password protection law”
in April of last year (that’s right – 2012),
which seems strikingly late in the game
when considering how long folks have
been dabbling online at this point. It’s
likely more just a simple indication of how
quickly this digital landscape evolves – the
laws are literally scrambling to keep up.
The list has grown behind Maryland’s
lead, however, and in the last year,
Arkansas, California, Colorado, Illinois,
Michigan, New Jersey, New Mexico,
Oregon, Utah and Washington have
joined the ranks of states with password-
protection legislation. As you can imagine,
many more states are falling in line (bills
are pending in 20 additional states), which
is also an indication – that password-
protection has found its way into the
language of law, and it’s about to get a
whole lot more complicated.
For now, the calm before the storm
perhaps, current laws are fairly
comparable, with the basic premise
highlighting a stance against employers
requesting or requiring jobseekers or
current employees to disclose their
personal social media information:
username, password, or any other
access data. Of the current 11 states
with password-protection laws on the
books, several vary slightly in depth and
scope, but the principle remains: to keep
employers from snooping, and then
making a judgment call based on what
they find.
Subheading
Opponents of the laws are already
emphasizing the need for uniformity –
citing ambiguity and interpretation issues
for businesses that employ a multitude of
people in different states (with different
laws). There’s also the issue of Nevada, a
state where a “social media account” is
defined as “…any electronic service or
account or electronic content, including,
without limitation, videos, photographs,
blogs, video blogs, podcasts, instant and
text messages, electronic mail programs
or services, online services or internet
website profiles.” Would everyone have
to eventually adhere to this standard?
And does this include in-house content:
email threads, internet research or
even marketing efforts? Will employers
inevitably be forbidden to monitor any
employee communication at all, let alone
social media activity?
As an example of the elasticity of
states’ rights at the
moment, California has
extended its own ban
on employers accessing
employer information
without permission by
prohibiting employers
from requesting to gain
access to an individual’s
personal content through
a co-worker.
One of the largest
criticisms of password-
protection law is
that it floats atop
a steady current of
unsubstantiated claims.
With very little data
across all media outlets
to support the need
for such protection over the last several
years, opponents express concern that the
campaign threatens to rewrite decades
of privacy law in the U.S., and unfairly
expose employers to potential liability.
Supporters point to a Darwinian assertion
that those who fail to adapt fall behind and
eventually die out – that this is where the
law is headed because it’s ethical, adaptable
and inevitable. It keeps employers in check
and abuse of power regulated.
Regardless of the stance any one person
or group takes, we can imagine that
password-protection law is going to
grow and spread and creep and crawl in
a similar fashion to the vehicle that gives
it life. We live in the middle of a largely
digital experience; it has changed the way
we communicate, do business, access
information and, yes, find employment.
It stands to reason that within this digital
experience is still a human experience –
often reliant on the willingness and ability
of its participants to police themselves
to a certain degree. It is absolutely the
responsibility of employers to refrain from
unethical social media prying, just as it is,
ultimately, a jobseeker’s or an employee’s
responsibility to understand that the image
he or she presents to the world through
social media will be the definition that he
or she is likely judged upon.
Facebook, LinkedIn, Twitter – all very
accessible and easily edited. Whereas
these venues are not immune to poor
decision making at times, they are quite
manageable – to the extent that, at a
certain point, people will assume that what
they see is what they get. Privacy settings
or not, social media is too big, too fast
and too emergent for its users to suppose
that someone, somewhere, isn’t looking
at who they are, and what they do. Future
privacy laws, bylaws and amendments
notwithstanding, the responsibilities fall
on both parties to represent themselves
professionally, and in accordance with
proper rules and regulations.
■
‘‘
”
“If you are not using
social media to either
look for a job, or look for
an employee, you’re likely
falling behind.”
The bombardment of digital
networking applications
and their ever changing
platforms consistently
blurs the lines that stand
between personal and
professional lives.
