States Rush to Ban Employers from Asking for Social Media Passwords

Should your boss ever have access to your Facebook page? What about a prospective boss? Or your school administrator?

The current hubbub in state capitals about social media access started when a job-seeker named Robert Collins had an interview with the Maryland Department of Corrections in late 2010. His interviewer, according to testimony Collins later gave before a state House committee, demanded access to his Facebook account and started sifting through his personal messages and photos to make sure Collins didn’t “have any gang affiliation.” Feeling his privacy had been violated, Collins approached his local chapter of the American Civil Liberties Union. The ACLU was predictably appalled, and the story of an employer demanding to see behind the social-media curtain started to blow up.

The local ACLU’s outcry eventually inspired Maryland’s state lawmakers  to pass the nation’s first ban on employers asking current or prospective employees for such usernames or passwords. After that statute got put on the books last May, six other states followed suit in 2012. And lawmakers in more than 30 states have continued the trend this year, proposing more than 60 related bills during their 2013 sessions.

Some bills, like one on New Jersey Gov. Chris Christie’s desk, are tailored to employees and employers. Other bills, like one sent to Arkansas Gov. Mike Beebe last week, forbid higher education institutions from asking students for access to their social media accounts. Still others, like one proposed this session in Hawaii, cover both. And some lawmakers have even tackled more indirect practices, such as applicants being asked to “friend” someone from HR or “shoulder surfing” (when the interviewer asks the applicant to poke around on the account while watching over his or her shoulder).

Many state legislators, Republican and Democrat, are arguing that better protections need to be in place and clearer lines need to be drawn, particularly for prospective employees. “In this job market, especially, employers clearly have the upper hand,” a sponsor of the New Jersey bill recently said. “Demanding this information is akin to coercion when it might mean the difference between landing a job and not being able to put food on the table for your family.” In his testimony before Maryland lawmakers, Collins said he “really needed” the job, so he “reluctantly” gave up the keys to his digital assets.

Allie Bohm, a policy strategist for the ACLU, says that employers are legally allowed to ask for access to social media accounts in the absence of such laws. Other experts have said the expectations of privacy are unclear. The legal realm remains a grey area because the rule-makers are still catching up to the technology. “The law just does not contemplate that we were going to be moving our lives online,” Bohm says. She points out that employers put themselves at risk if they do ask for access, however: should they learn information that they’re not allowed to consider when making a hire—that an applicant is, say, pregnant—and then don’t give the applicant a job, they’ve opened themselves up to potential lawsuits.

Members of the business community have pushed back against some of the proposals. Bohm says this is often due to misunderstandings, like employers mistakenly worrying that they’ll lose control over work email accounts, too. In Washington, State Rep. Mike Sells supported an amendment at the behest of some business groups that would have allowed bosses to search social media accounts during company investigations. But he withdrew it last week, saying the language didn’t specify clearly enough what kind of evidence the head honchos would need before asking for access. “In the bills this year, lawmakers are seeking the balance between employee and employer concerns,”  says Pam Greenberg, who monitors technology trends for the National Conference of State Legislatures.

These proposals have spread at lightning speed despite a dearth of data about how many employers or school administrators out there are actually demanding access to Facebook pages or Twitter feeds. Advocates and state lawmakers have pointed to an Associated Press article from March 2012 as a piece of evidence that the trend is widespread, though neither Bohm nor Greenberg is aware of a more comprehensive survey of the phenomenon.

Bohm argues that laws are needed regardless, whether they’re being used to stop or prevent people from being asked for what many view as private information. Some of this session’s bills governing employer or school access to social media have already died. A few, in states such as New Mexico and Utah, have already been enacted. But the majority are still in committees or on calendars, according to the NCSL’s count. And Greenberg warns that many states will be out of session by May, which means lawmakers have to move quickly if they don’t want to see their bills expire when summer recess begins.