New Jersey Updates its Privacy Settings

By: Jerry Lagomarsine

Over the past month New Jersey has taken strides in protecting social media privacy.[1]  A New Jersey Judge just interpreted the federal Storage Communication Act (SCA) to apply to private wall posts on Facebook.[2] The case involved an employee who criticized her job on her Facebook wall and one of her coworkers showed it to the manager.[3] The Judge decided that this post was protected under the SCA because the employee had set her privacy setting so only friends could view her wall and her manager was not one of her friends.[4] The SCA focuses on the intention unauthorized access of electronic information.[5] The SCA also provides for criminal and civil remedies against anyone that breaches this privacy.[6]

However, this decision is not enough to completely protect private posts on Facebook.[7] The biggest drawback to this decision is that even though the post was protected under the SCA the employee lost this case.[8] It was the coworker who accessed the post not the employer and the coworker was authorized to view the post.[9] The SCA only protects against unauthorized access to private information or private posts.[10]

New Jersey also recently passed a law that prohibits employers from requesting usernames or passwords for social media sites from employees or future employees.[11] This new legislation goes even further be stating that employers cannot force employees to waive this protection and employers can not retaliate against an employee for refusing to relinquish this information.[12] This law makes New Jersey the thirteenth state to pass a law protecting employee’s usernames and passwords.[13]

This statute applies to most employers in private and public sectors regardless of their employment size.[14] The only jobs that are exempt to this law are the State Department of Corrections, the State Parole Board, county corrections departments, and any State or local law enforcement agency.[15] The employers who are found guilty of violating this law can be criminally liable and pay a fine.  However, there is no civil remedy for employees against the employer who violates this law.

There are several exceptions to this law. One is that employers are allowed to request the usernames and passwords to any sites that are being used for “business purposes”.[16] There is also an exception for the usernames and passwords for electronic devices used for work.[17] The main theme of these exceptions seems to be when this information relates directly to work.

It appears, at least in New Jersey, that the law is trying to keep up with the ever changing technology. There are still a lot of ways around these laws. Neither the case nor the statute protect against posts that can be viewed by the public. This allows employers to search for your information. Also, neither of these laws prevents the employer from asking an interviewee to add the employer as a friend on Facebook. The interviewee could simply say no but risks not getting hired. While these laws are a step in the right direction there is still plenty of ways an employer can use Facebook against an employee.


[1] David Rich, New Law Prohibits Employers In New Jersey From Forcing Workers To Provide User Names Or Passwords For Their Social Media Account, Business Litigation, Employment and Securities Related Legal Issues in New York (Sept. 23, 2013), http://www.davidrichlaw.com/new-york-business-litigation-and-employment-attorneys-blog/; see also Glenn Manishin, Friends With Benefits (How Privacy Law Evolves for Social Media), DisCo (Disruptive Competition) (Sept. 3, 2013), http://www.project-disco.org/intellectual-property/090313-friends-with-benefits-how-privacy-law-evolves-for-social-media/

[2] See Glenn Manishin, Friends With Benefits (How Privacy Law Evolves for Social Media (Sept. 3, 2013), http://www.project-disco.org/intellectual-property/090313-friends-with-benefits-how-privacy-law-evolves-for-social-media/

[3] Id.

[4] Id.

[5] 18 U.S.C. §§ 2701 (2013).

[6] Id.

[7] See Glenn Manishin, Friends With Benefits (How Privacy Law Evolves for Social Media (Sept. 3, 2013), http://www.project-disco.org/intellectual-property/090313-friends-with-benefits-how-privacy-law-evolves-for-social-media/

[8] Id.

[9] Id.

[10] Id.

[11] David Rich, New Law Prohibits Employers In New Jersey From Forcing Workers To Provide User Names Or Passwords For Their Social Media Account (Sept. 23, 2013), http://www.davidrichlaw.com/new-york-business-litigation-and-employment-attorneys-blog/

[12] Id.

[13]David Rich, New Law Prohibits Employers In New Jersey From Forcing Workers To Provide User Names Or Passwords For Their Social Media Account (Sept. 23, 2013), http://www.davidrichlaw.com/new-york-business-litigation-and-employment-attorneys-blog/

[14] Id.

[15] Id.

[16] Id.

[17] Id.

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