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Handing Over the Keys 

A new law in Washington aims to protect your updates, likes and tweets from your employer

click to enlarge Chris Bovey illustration
  • Chris Bovey illustration

A decade ago, most employers didn’t know Facebook (then thefacebook.com) even existed. Now, some may make potential employees’ profiles on the social media site required reading before hiring. Indeed, worries about your boss seeing your public profile have grown into concerns they might ask for your password or require you to add them as a friend.

A bill signed by Gov. Jay Inslee last month ensures employees are protected from such requests, at least as long as their boss has no suspicions about misconduct. The caveat in the bill, which passed unanimously in both the state House and Senate, makes an exception for cases where employers are investigating allegations that the employee specifically used social media to violate company rules or share proprietary information. The exceptions were added into the law after business groups pressed lawmakers.

“Part of the challenge we see … is you might actually be creating an information portal that could be protected if folks — employees — wanted to use it for nefarious activities,” Denny Eliason, a lobbyist for the Washington Bankers Association, told the House Labor and Workforce Development Committee in March. Eliason says because of strict regulations about protecting customers’ financial information, banks were especially worried about losing their ability to investigate unscrupulous employees. Without amendments to the bill, businesses would have had to turn over all tips about misconduct to the police, instead of being able to vet them for a real threat before getting police involved.

A lobbyist from TechAmerica, which represents technology companies to lawmakers across the country, also urged the committee to add the amendments. Alexi Madon, one of TechAmerica’s directors of state government affairs, says it’s a push they’ve been making in other state houses across the country to try to balance privacy rights with companies’ interests. She says bosses worry that without exceptions, their hands would be tied from investigating employees who may be harassing other employees on social media or leaking proprietary information.

“These [exceptions] are very certain situations that directly affect a company or its employees in a negative matter,” she says, “not just a business wanting to know what you’re doing in your off time.”

Even with the exception, employees have the right to refuse to hand over their information to employers, who could then take legal action. Those who worked on the bill, from lobbyists to the ACLU of Washington, say the exceptions don’t hinder the effectiveness of the bill to protect innocent employees.

“Under existing law, there is just nothing to protect the employee,” says Shankar Narayan, legislative director for the ACLU of Washington. “[This bill] creates an explicit bar.”

Washington is the seventh state to put such a law on the books, and similar bills have been introduced or are on governors’ desks in 28 other states. Last March, an Associated Press story about the trend focused on two instances where job applicants were asked to turn over their Facebook login information or friend someone at the company where they were applying. Soon after, two Democratic senators asked Attorney General Eric Holder to investigate whether the practice is legal under federal law and Facebook threatened legal action against companies whose job applications requested Facebook passwords. (The site’s terms of service prohibits users from sharing their passwords.)

“One of the things this bill really highlights is that our laws, in a lot of ways, need to catch up to technology,” says Sen. Andy Billig, D-Spokane, who was a co-sponsor of the bill.

Narayan admits there’s been no study of exactly how widespread the problem is and most of the evidence is “anecdotal.” (He says ACLU offices across the country have heard complaints about the practice.) But in the still new frontier of online privacy, activists say doing nothing could give employers unfair expectations about just what they’re entitled to see.

“Everyone understands the concept that an employer can’t sit behind you at a bar and listen to your private conversations with friends, or come into your home and look through your photo albums.” Narayan says. “Why should they be able to do that online?” 

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