Global Security, Privacy, & Risk Management

Privacy, Social Media, and Legislation September 29, 2012

This week marks the opening of a new chapter in the rocky marriage of privacy and social media.  California has passed two laws related to the protection of privacy on social media platform.

In SB1349, the state prohibits public or private post-secondary educational institutions from requiring students to provide the organization with access to the student (or student groups) social media sites.  Nor can the student or group be forced to divulge information contained on those sites.

AB 1844 is similar in nature, but applies to employers.  Specifically, the bill “would prohibit an employer from requiring or requesting an employee or applicant for employment to disclose a username or password for the purpose of accessing personal social media, to access personal social media in the presence of the employer, or to divulge any personal social media. This bill would also prohibit an employer from discharging, disciplining, threatening to discharge or discipline, or otherwise retaliating against an employee or applicant for not complying with a request or demand by the employer that violates these provisions.”

These bills are interesting in that they address a core concern around privacy and labor laws as they relate to social media.  Employers (and potential lenders) are prohibited from making decisions based upon race, gender, religion, politics, sexual orientation.  Most of this information, though, is available on individuals’ private social media profiles.  Amid increasing reports of employers requiring prospective employees to turn over credentials or access their sites in view of the employer, privacy advocates were becoming increasingly, and rightly, concerned that the rights of individuals to protect their personal lives from employers were being diluted.  These actions on the part of California serve to protect those rights.  Frankly, these actions can also protect employers and schools from being accused of discriminatory behavior by not providing them access to this information, which would otherwise be unavailable to them.

It will be interesting to see how quickly other states follow the lead that California has set.  Recall that California was the first state to pass a breach notification law and we now have 46 such laws nationwide.  So the question, to me, is when, not if, we are going to see the trend take shape.