U.S. House Fails to Protect Access to Social Media Passwords from Employers

Maryland and Illinois may be joining the bandwagon to protect employer's social media passwords, but not the U.S House of Representatives.

According to ABC7News in San Francisco, the House rejected a proposal to protect passwords on social media from employers and other prying eyes.

The vote against the Perlmutter amendment vote was cast down party lines by a margin of 236-184, with Democrats in favor and Republicans against.

Had it passed, the bill (dubbed the "MIND YOUR OWN BUSINESS ON PASSWORDS" Act) would've added language to H.R. 3309, the Federal Communications Commission Process Reform Act of 2012, giving the agency powers to intervene and stop any employers from asking for confidential information, including passwords to their social media accounts.

The amendment follows similar measures adopted in Maryland, Illinois and other states after news reports surfaced in March about job applicants being asked for passwords to their Facebook, Twitter, and other online accounts by prospective employers as a prerequisite of employment.  Employers sought to use those passwords to peruse the social media profiles of applicants in order to determine if they were doing anything nefarious or distasteful.

Maryland's Department of Public Safety and Corrections Services--which administers the state's prisons--was especially singled out for after an employee was asked to give up his passwords when he returned to his job following his mother's death.

The ACLU intervened in Robert Collins' case, and the longtime policy was amended. Maryland applicants now have to log into their Facebook and Twitter accounts in the presence of a prospective employer instead of handing the passwords over, but the new rules are far from perfect.

"To me, that's still invasive," Collins said in an interview with boston.com March 20. "I can appreciate the desire to learn more about the applicant, but it's still a violation of people's privacy."

Since then the Maryland House has taken up H.B. 3782--which forbids employers from accessing confidential social media information--and the bill is in the process of working through the chamber. A similar measure was offered in the senate.

S.B. 433 would forbid an employer from requiring his workers to 'disclose any user name, password or other means for accessing a personal service through certain communications devices.’

Yet another measure, S.B. 434, would prohibit colleges and universities from doing the same thing to their students.

The bills are not an academic exercise. A Michigan teacher was recently suspended after parents complained about a photo on her Facebook wall. The photo in question showed a picture of a co-worker's pants around her ankles and a pair of shoes.  The caption read 'thinking of you.’

Hester's superintendent asked for her login information, and three times she refused.

"I stand by it," Hester later told television station WSBT. "I did nothing wrong. And I would not, still to this day, let them in my Facebook. And I don't think it is ok for an employer to ask you."

Hester is currently engaged in a legal dispute with her employer over her firing.

The case illustrates the dangers of blurring the lines between the personal and public.  Yet for some, the question of privacy is not one of absolutes, but of degrees.

ACLU attorney Catherine Crump compares password-snooping to reading someone else's mail-- which is already a criminal offense.

"You'd be appalled if your employer insisted on opening up your postal mail to see if anything of interest inside," she is quoted as saying on the ACLU's Blog of Rights blog. "It's equally out of bounds for an employer to go on a fishing expedition through a person's private social media account."

On the other hand, as University of Pennsylvania professor Anita Allen pointed out to The Atlantic's Megan Garber, employers are within their rights to require drug tests, personality tests, and other information from their employees: Why would Facebook passwords be any different?

For Allen, the bar was set when the Supreme Court ruled in 1985 that a student has a reduced expectation of privacy at school versus the home. The ruling in New Jersey v. T.L.O. applied to the searches of purses, pockets and other items by police for controlled substances, but the precedent it set had a later affect on subsequent cases affecting email and other digital information (including employee information).

But the precedent for social media is not so clear. Despite the mountains of laws and statutes, there is none that defines what, exactly, are the claims employees have on their online identities. Facebook has already threatened legal actions against employers, amending its Statement of Rights and Responsibilities to define the sharing of passwords as constituting a violation of its terms of service.

That makes Hester's case difficult to argue, but even if she makes it all the way to the Supreme Court she'll have to rely on precedent--and the case law as it stands is not on her side.

 "Snooping in someone's Facebook profile is unlike a drug test or personality test in that it implicates one's family and friends,” said Garber. “It is unlike reading one's mail, unlike wandering through someone's house...It is like a home in that it is divided, purposely and definitively, from the open web.  It is an expression of yourself, and it is, in the deepest way, yours."

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