Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Reproduced with permission from the HR Library. Copyright © 2012 The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com
and Lauren Woon
The story went viral, and legislators around the country caught the virus. On March 21, 2012, the Associated Press reported a few incidents where employers had requested or required log-in credentials from applicants or employees to access their personal social media account. Over the next three weeks, more stories were published; some regurgitating the incidents originally reported by the A.P., and others reporting on additional, alleged inquiries. The media frenzy stoked public outrage. Legislators around the country and in Congress sought to ride the wave of public sentiment by introducing legislation to slam the door on the perceived abuse. The result has been one state law as well as bills pending in eleven states and in Congress that are unnecessary, radically rewrite the law of privacy, and unfairly expose private employers to potential liability.
Social Media “Password Protection” Laws Are Unnecessary
Neither the A.P. article nor any other article from a major U.S. news outlet comprising the media frenzy of spring 2012 cites a single study proving that private employers routinely ask applicants or employees for log-in credentials to their personal social media accounts. In fact, a careful review of the anecdotal “evidence” contained in these news stories demonstrates that the exact opposite is true. All of the media coverage combined reported one instance in which a private employer requested log-in credentials. All but this one reported incident involved public employers, such as corrections departments and police forces. The overwhelming buzz drowned out this distinction.
The only empirical data of which we are aware is fully consistent with this anecdotal evidence demonstrating that private employers do not ask for log-in credentials. Littler Mendelson’s Executive Employer Survey Report, published in June 2012, asked nearly 1,000 C-suite executives, corporate counsel, and human resources professionals from corporations throughout the United States and ranging in market capitalization from less than $1 billion to more than $4 billion the following question: “Has your organization requested social media logins as part of the hiring or onboarding process?”1 The response: 99% of respondents answered the question in the negative.
In sum, at least as far as private employers are concerned, there is no proven need for password protection laws. Both the available anecdotal and empirical evidence, albeit limited, compel the conclusion that private employers are not asking applicants or employees for personal social media log-in credentials.
Social Media “Password Protection” Legislation Radically Rewrites the Common Law of Privacy
The one password protection bill that has been enacted, in Maryland, as well as the password protection legislation pending in eleven states — California, Delaware, Illinois, Michigan, Minnesota, New Jersey, New York, Ohio, Pennsylvania, South Carolina, and Washington — and in Congress, generally prohibit employers from requesting or requiring that employees or applicants provide the log-in credentials for a personal social media account. The underlying premise of these bills is that an employer invades an applicant’s or employee’s privacy by viewing content on a restricted access social media account without the voluntary consent of the account holder. Digging one step deeper, these bills, at their core, are saying that the content of a restricted access social media account is private no matter how many people the user invites to view that content and regardless of the relationship between the user and the viewer. Put more plainly, these bills declare, for example, that a Facebook user who has more than 500 “friends,” including current and former supervisors and other executives at his current employer, can establish the “privacy” of his content by using Facebook’s privacy settings to restrict access to “Friends Only.”
No court has ever construed the tort of invasion of privacy by intrusion upon seclusion so broadly. That tort requires, in the first instance, a “private fact” which can be the subject of an intrusion. The vast majority of courts have held that, if the fact that is the subject of the claim has been disclosed to even a small number of people not under a legal or contractual obligation of confidentiality, the fact is not private and the intrusion upon seclusion claim fails.2 To be sure, a small number of cases have permitted an intrusion upon seclusion claim to proceed even though the plaintiff had shared the private fact with others. However, in virtually all of these cases, the private fact was shared within a group that had a very specific relationship with the plaintiff, such as co-workers or participants in an in vitro fertilization program.3 We are not aware of any case holding that facts disclosed to dozens or hundreds of people who do not form a cohesive group are private from a private employer, especially when that group includes management-level employees of the employer who is the defendant on the privacy claim. In sum, the password protection laws create a “ring of privacy” with a circumference that is far larger than any court has recognized to date.
Notably, the one reported case where a jury considered whether an employer committed an intrusion upon seclusion by accessing two employees’ restricted-access social media site resulted in a verdict on that claim for the employer. In that case, Pietrylo v. Hillstone Restaurant Group, a group of employees at a Houston’s restaurant (the chain owned by the Hillstone Restaurant Group) established an invitation-only, password-protected MySpace page.4 In the words of the site’s founder, the page would permit group members to “vent about any BS we deal with [at] work without any outside eyes spying in on us.” The founder emphasized in his first post that “[t]his group is entirely private.” Houston’s accessed the site after a group member shared her log-in credentials with management. After viewing the venting about the company, management, and customers, the restaurant fired the site’s founder and another group member. Both responded by suing Hillstone for, among other claims, violating the federal Stored Communications Act (the “SCA”) and common law invasion of privacy.
While the jury’s verdict for the fired employees on their SCA claim has received substantial press and academic attention, the jury’s verdict for Hillstone on the invasion of privacy claim seems to have been lost in the shuffle. The jury’s verdict form reveals the jury rejected that claim based on its finding that the fired employees did not have a reasonable expectation of privacy in the content they posted on their site. The jury reached this conclusion despite the password protection, despite the invitation-only rule, and despite the founder’s pronouncement that the site was “entirely private.” A fair inference is that the jurors believed the fired employees could not reasonably expect privacy in content that was available to numerous group members and that could be further disclosed by any group member to anyone, including journalists, without restriction.
Legislators, of course, are free to create a public policy that overturns decades of common law jurisprudence, particularly when necessary to address new technology not yet considered by common law courts. However, the validity of a new public policy should be closely scrutinized when there is no apparent need for it, it is so broad that it leads to absurd results, and, as explained below, it potentially exposes all private employers to substantial liability.
Social Media Password Protection Legislation Exposes Private Employers to Liability
Legislators appear to have been so swept up by the media frenzy over the perceived, but unproven, injustice of private employers asking for personal social media log-in credentials that they drafted legislation with little consideration of employers’ legitimate interests. To illustrate the point, virtually all of the pending password protection bills applicable to private employers prohibit requests for personal, social media log-in credentials without exception. In other words, these bills effectively find that private employers never have a legitimate business reason to require, or even request, such log-in credentials.
Notably, the one state which has actually enacted a password protection law recognized that a blanket prohibition is unjustified. Under Maryland’s password protection law, an employer can ask for personal social media log-in credentials when needed to investigate securities law violations or a misappropriation of trade secrets. Delaware’s pending bill, alone among the pending bills, carves out an exception for securities-related investigations.
These exceptions, however, are unjustifiably narrow. There is no reasoned basis for distinguishing between investigations into securities fraud or misappropriation of trade secrets and those into other forms of unlawful or even criminal conduct. To illustrate the point, in all states, including Maryland, an employer could not fully investigate potential workplace violence. The password protection legislation would prevent an employer from going to the source if an employee were to report that a co-worker had posted on his restricted-access social media account the following: “I’m so angry I want to kill my boss” or “I hate work. I’m gonna blow the place up.” Thus, the employer would lose the benefit of critical information, such as the context of the post and other indicia of the seriousness of the threat revealed by the actual content.
It is unclear whether the survivors of murdered employees could hold the employer legally responsible in this scenario for failing to investigate the incident adequately, but no one wants to see a test case. Critically, these examples are not hypothetical hyperbole. According to one of the foremost experts in the field of workplace violence, James Turner, Ph.D., president of the International Assessment Services and one of the foremost experts in the field of workplace violence, it is not uncommon for those planning to commit murder to provide clues to their homicidal intent in Internet postings before they pull the trigger. For example, a gunman wrote a series of posts to an online bulletin board, the last of which stated “It’s time,” before murdering seven people in a Tokyo shopping mall.5 Another gunman posted “I wonder if I’d make the six o’clock news if I just starting popping people off” before killing three guards and wounding a fourth on the University of Alberta campus.6
The password protection bills, as currently drafted, as well as the Maryland law, also thwart investigations into workplace harassment. It would be naïve to believe that the bullying which used to happen on the shop floor or in the break room has not moved to social media. Indeed, the California Court of Appeals recently affirmed a jury’s verdict holding an employer responsible for its employees’ bullying of a co-worker with a disfigured hand. The court relied heavily on co-workers’ scathing blog posts that referred to the employee as “The Claw” and ruthlessly ridiculed him because of his disability.7 In the California case, the employee was able to discover and report the bullying to his employer because the blog posts were public. Password protection laws, however, would throw a cloak of secrecy around this type of illegal conduct when conducted through a restricted-access social media account.
As with the workplace violence scenario, it is unclear whether an employer could be held responsible for work-related harassment that is inaccessible to the employer. The plaintiffs’ bar can be expected to try. Putting aside legal liability, workplace harassment and threats of workplace violence that are visible to co-workers, but invisible to the employer, will have intangible costs for the workplace, such as undercutting employee morale, causing tension among co-workers, and distracting employees from their work. Given the absence of any proof that private employers are asking for social media log-in credentials, there is no justification for legislatures to impose on employers those costs or the potential liability arising from an inadequate investigation of employees’ unlawful work-related social media conduct.
While the risks arguably are not as serious, the application process still can present situations where an employer justifiably seeks access to content posted on a restricted-access social media account. For example, if a current employee were to inform her human resources manager that she has seen content on an applicant’s “friends-only” Facebook page that raises serious questions about the applicant’s suitability for employment with the employer, the employer should be able to gain access to that information whether by asking the applicant or the employee for log-in credentials, for permission to “shoulder surf,” or for a hard copy or screen shot of the content in question. While the phrasing of the Maryland law and the pending password protection bills is somewhat ambiguous, they all appear to put the applicant’s social media content completely off-limits, regardless of which of these methods the employer wishes to use. Given the substantial disruption and cost to private employers of a “bad hire,” they should not be completely foreclosed from this source of information, particularly given that a host of laws — such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, and the Genetic Information Non-Discrimination Act of 2008 — already substantially restrict an employer’s ability to use social media content for employment decisions.
State and federal legislators should recognize that they may have “jumped the gun” by relying on hype rather than facts in their hurried attempt to get ahead of a public outcry. At this point, there is no empirical data suggesting that private employers are routinely or even occasionally requesting or requiring personal social media log-in credentials. Consequently, it is not necessary to enact legislation that would radically expand the definition of “privacy” and substantially impede employers’ ability to investigate potentially unlawful and even criminal conduct.
1 Littler Mendelson Executive Employer Survey Report (June 2012), available at http://www.littler.com/content/littler-mendelson-executive-employer-survey-report-2012.
2See, e.g., Duran v. Detroit News, Inc., 200 Mich. App. 622 (1993) (intrusion claims failed because the information defendants obtained was either available via public record or had been disclosed by plaintiffs such that it was “open to the public eye”); Fletcher v. Price Chopper Foods of Trumann, Inc., 220 F.3d 871, 877-78 (8th Cir. 2000) (intrusion claim failed where plaintiff asserted a privacy interest in the medical fact that she had a staph virus at the time of her employment termination because plaintiff revealed this information to her co-workers); cf. Nader v. Gen. Motors Corp., 25 N.Y.2d 560, 568-69 (1970) (intrusion claim was unsupported by allegations that defendants interviewed people who knew plaintiff and thereby obtained information of a private nature because plaintiff assumed the risk that those he confided in may breach that confidence; plaintiff’s claim was supported on other grounds such as unauthorized wiretapping).
3See, e.g., Sanders v. Amer. Broadcasting Cos., 20 Cal. 4th 907 (1999) (even though the plaintiff’s conversation could be seen and overheard by co-workers, plaintiff’s intrusion claim could proceed where media reporter covertly taped plaintiff’s conversation). Cf. Y.G. v. Jewish Hosp. of St. Louis, 795 S.W.2d 488, 502 (Mo. Ct. App. 1990) (plaintiffs use of in vitro fertilization was a private matter even though they attended a social function for participants in the hospital’s in vitro fertilization program).
4Pietrylo v. Hillstone Rest. Group, No. 2:06-cv-05754-FSH-PS (D.N.J. 2008).
5 Norimitsu Onishi, Man who killed 7 in Tokyo left online warnings, N.Y. TIMES (June 9, 2008), http://www.nytimes.com/2008/06/09/world/asia/09iht-09tokyo.13575210.html.
6 Michelle McQuigge, Chilling Facebook comment preceding armed guard murders stokes employee online privacy debate, THE CANADIAN PRESS (June 23, 2012), http://news.nationalpost.com/2012/06/23/chilling-facebook-comment-preceding-armed-guard-murders-stokes-employee-online-privacy-debate/.
7Espinoza v. County of Orange, No. G043067 (consol. with G043345) (Cal. Ct. App. 2012).