What’s Your Password? Employers Seek to Make Private Information Public

by Brian Idehen

Social media has been a recent hot button topic in labor and employment law. More specifically, there is a discussion as to whether passwords to personal social media accounts of employees should be made available to employers. Employers seek these passwords for purposes such as protection of proprietary information;[1] however, there is a fear that the information gathered would or could be used for the unauthorized monitoring of employees’ activities, and ultimately for violations of their rights.[2]

The National Labor Relations Act (“the Act”) allows employees to protect conversations that extend over Twitter and Facebook;[3] however, the Act does not extend protections over to passwords.   The purpose of the Act is to address conditions at work with or without a union,[4] and so conceivably the Act was only concerned with public information. However, employers are also concerned with what is said in private. Namely, employers do not want trade secrets, proprietary information, or anything that can be in violation of federal financial regulations passed between friends or foes.[5] But should employers be allowed to delve into the private lives of their employees, in the name of company preservation?

Twenty-eight states think the answer to that question should be no.[6] Legislation has been enacted or introduced in these states to offer protections for employee privacy in the workplace.[7] Similar to legislation protecting college students from having to give university administrators their passwords, states believe that personal online accounts should not be disclosed.[8]

One such state that protects these interests is New York. New York’s Senate Committee on Labor passed legislation “[p]rohibit[ing] an employer from requesting that an employee or applicant disclose any means for accessing an electronic personal account or service”[9] on May 13 of this year. This was on the heels of the States’ Assembly Committee on Labor in February of the same year stating enacting a bill that “[p]rotects the privacy of employees’ and prospective employees’ social media account [sic].”[10]

We see it more and more everyday: social media affects the lives and, in some instances, the livelihoods of employees and employers in America. Employers are potentially exposed in ways they have never considered before, and, as a result, are looking for ways to insulate themselves from this exposure. Courts have already held that employees who create and manage social media accounts for the company must turnover that login information upon termination;[11] however, there is no desire for that sort of protection to extend to the personal accounts of those same employees it seems.

This issue is not one that is going to go away anytime soon, however. Twenty-two states including Alaska, Colorado, and Oregon have not adopted such legislation, and there does not seem to be any initiative moving towards doing so. Seeing as how this is not a federally regulated issue, and there is such a close split between the states that have adopted legislation and the ones that have not, this seems like a ripe issue to reach the Supreme Court in the coming years.

[1] Employer Access To Social Media Usernames and Passwords, National Conference of State Legislatures, http://www.ncsl.org/research/telecommunications-and-information-technology/employer-access-to-social-media-passwords-2013.aspx (last visited October 27, 2014).

[2] Id.

[3] The NLRB and Social Media, National Labor Relations Board, http://www.nlrb.gov/news-outreach/fact-sheets/nlrb-and-social-media (last visited October 27, 2014).

[4] Id.

[5] National Conference of State Legislatures, supra note 1.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Venkat Balasubramani, Ex-Employee Converted Social Media/Website Passwords by Keeping Them From Her Employer-Ardis Health v. Nankivell, Tech. & Mktg. L. Blog (October 26, 2011), http://blog.ericgoldman.org/archives/2011/10/ardis_health_v.htm.

Do Judges Understand Technology? Does it Matter?

By: Thomas Friedkin

Most of us know that you have to be careful with your actions on the internet these days. A seemingly innocuous action on a social media site can have far reaching effects one might not have originally anticipated. Take the holding in a decision from a district court judge in Virginia this April for example. A few Sheriff’s department employees were let go after the Sherriff was reelected. [1] These employees claimed they were let go because of their support of their boss’ rival during the election. [2] Aside from some inadequate testimonial or speculative evidence that their boss was aware of their involvement with his rival’s campaign the only other evidence was that these employees had liked the rival’s fan page on Facebook. [3] The Judge, while acknowledging that making certain comments on a Facebook page can be protected speech, held that simply liking a fan page is not enough to be considered speech. [4] I won’t go into a discussion of the prudence or merits of such a holding, those issues have been considered and given better coverage than I could provide by other blogs. [5] [6] What is striking about this ruling is how much one’s constitutional protections in the face of developing technology can depend on how up to date a particular judge is on new technological developments and trends.

More recently this concept was dealt with by a judge in a New York Criminal Court. This case involved an attempt to subpoena the tweets of a person who took place in the occupy Wall Street protests. [7] The judge held that a person’s tweets are the same as yelling out one’s windows. [8] Interestingly enough he also stated that the many of the founding fathers would have been avid Twitter users if it had been available in their day. [9] In May of this year Twitter added a portion to their terms of service stating that users retained their rights over any content they created. [10] They attempted to argue that this change could protect their users from a subpoena. [11] However, the judge held that only data which had been stored longer than the 180 day statutory period under the Stored Communication Act would require a warrant; all other data could not be protected as one did not have a reasonable expectation to privacy in their tweets. [12] In reaching this opinion the judge even referenced a blog post which, partially in response to Judge Jackson’s ruling in the previously mentioned case, claimed that judges do not understand social media. [13] While in this case the judge’s holding led to a less startling decision and one perhaps not as likely to be appealed, he revealed his understanding of at least one element of modern technology. That is, no one actually reads the terms of service before signing up for anything.

Regardless of whether a judge understands modern technology they will be the ones most immediately responsible for dictating its confluence with the law. If you look at the age of certain judges this may be a harrowing realization for some. [14] Even Justice Alito has said that Congress may be a bit hipper when it comes to understanding and deciding how the current trends in technology should interact with the law; [15] an assertion that I am not sure gives much solace to the youth. However, we can be sure that technology just like the law will keep changing and the advancement of both will have far reaching and profound effects in the workplace, our homes and our lives. For now just be careful what Facebook pages you like and remember no one actually expects you to read the terms of service.

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[1]. Bland v. Roberts, No. 4:11cv45, 2012 WL 1428198, at 1 (E.D.Va. April 24, 2012).

[2]. Id

[3]. Id. at 3.

[4]. Id. at 4.

[5]. Megan Garber, Is a Facebook Like Protected Under the First Amendment? A Court Says No, The Atlantic (Apr. 30, 2012, 3:05 PM), http://www.theatlantic.com/technology/archive/2012/04/is-a-facebook-like-protected-under-the-first-amendment-a-court-says-no/256534/.

[6]. Venkat Balasubramani, Facebook “likes” aren’t speech protected by the First Amendment, rules judge, Arstechnica (Apr. 28, 2012, 3:40 PM), http://arstechnica.com/tech-policy/2012/04/facebook-likes-arent-speech-protected-by-the-first-amendment-rules-judge/.

[7]. People v. Harris, 2012 WL 2533640 (N.Y. City Crim. Ct. June 30, 2012).

[8]. Id. at 4.

[9]. Id. at 6.

[10]. Twitter, https://twitter.com/tos (last visited Sept. 2, 2012).

[11]. People v. Harris, 2012 WL 2533640 at 2 (N.Y. City Crim. Ct. June 30, 2012).

[12]. Id. at 5.

[13]. Stephanie Rabiner, Esq., Do Judges Really Understand Social Media?, Technologist (May 9, 2012, 4:59 AM), http://blogs.findlaw.com/technologist/2012/05/do-judges-really-understand-social-media.html.

[14]. A.G. Sulzberger, Wesley E. Brown, Oldest Judge in Nation’s History, Dies at 104, N.Y. Times (Jan. 25, 2012), http://www.nytimes.com/2012/01/26/us/wesley-e-brown-oldest-judge-in-nations-history-dies-at-104.html.

[15]. United States v. Jones, No. 10-1259, slip op. at 33 (U.S. Jan. 23, 2012).

Social Media and the NLRA

By: Michael Scheiner

Any mention of labor unions in casual conservation usually brings with it images of employees picketing outside their place of work, clearly displaying their distastes regarding their employer’s workplace policies—what labor law refers to as concerted action. The advent of social media; however, has added a novel wrinkle to this area of law as employees have now taken to social media outlets such as Twitter and Facebook to voice their displeasure about workplace conditions. This intersection of social media and labor law has raised the critical question of whether the concept of protected concerted action extends to employees’ utilization of social media.