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States pass laws that ban requesting passwords

Stacked3This week's Daily Record column is entitled "States pass laws that ban requesting passwords."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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States pass laws that ban requesting passwords

Last summer I wrote about a new and disturbing practice utilized by many employers: requesting social media passwords from new job applicants. Although this particular trend has been most evident amongst law enforcement agencies, other professions have jumped on the bandwagon as well, and, accordingly, many have raised concerns about this new practice.

As I explained last summer, I believe the practice is problematic because it arguably violates the privacy of not only the potential employees, but also of innocent third parties with whom they have communicated using social media sites.

Oftentimes, when people interact on social media sites, the communications are made with the understanding that only the intended recipients will have access to the message. This is because many social media users prefer to keep their personal information private, so they make a conscious decision to limit public access to their social media profiles in order to enhance their levels of privacy.

By obtaining social media passwords, employers can bypass these privacy settings and access all electronic communications related to the profiles, regardless of the privacy settings in place.

My biggest concern regarding this practice is that even if the job applicants agree to allow hiring agencies access to their social media profile passwords, their “friends” most certainly have not. Therefore, policies of this type should be terminated since they infringe upon the privacy rights of innocent, unsuspecting third parties who happen to be friends with, and correspond with, job applicants.

Since I last addressed this issue, this questionable practice has become even more commonplace, with employers requesting social media passwords from both new applicants and current employees. Fortunately, I’m not the only one offended by this troubling new trend.

In recent months, two different bills prohibiting this practice have been introduced in Congress, although neither has yet been voted on. And, two states have enacted laws that prohibit employers from obtaining social media passwords from job applicants and employees.

Maryland and Delaware were the first states to pass a law of this type, followed by Illinois, which passed a similar law last month. The new Illinois law will be effective on Jan. 1, 2013.

When signing the bill, Illinois Gov. Pat Quinn explained the rationale behind the prohibition: “Members of the workforce should not be punished for information their employers don’t legally have the right to have. As use of social media continues to expand, this new law will protect workers and their right to personal privacy.”

The good news is that Maryland, Delaware and Illinois aren’t alone in their efforts to curb employers’ access to this type of information. A number of other states, including California, Michigan and New Jersey are considering similar laws. So, perhaps this intrusive practice will soon be a thing of the past.

Even so, that employers chose to pursue this information in the first place is just one example of the many downsides associated with the social media phenomenon. Social media provides us with many benefits, including the ability to more easily communicate, collaborate and share information, but those benefits come at a price: the potential loss of our privacy.

Whether the benefits outweigh the risks associated with the use of social media remains to be seen. Over time we’ll have a better sense of whether our culture is able to effectively balance the plusses and minuses of social media. The recently enacted laws are a good start. But let’s withhold judgment until we see what the future holds.

Nicole Black is a Rochester, New York attorney and the Vice President of Business Development and Community Relations at MyCase, an intuitive cloud-based law practice management platform for the modern law firm. She is also a GigaOM Pro Analyst and is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at nblack@nicoleblackesq.com.