Uniform Social Media Privacy Proposal Due in 2016

By Bebe Raupe

Dec. 1 — The Uniform Law Commission will vote on model social media privacy legislation at its July 2016 annual meeting, according to study committee members developing the proposal.

The proposed uniform legislation would cover both employer access to employees' online account information and university access to students' online account information. The proposal, as currently written, is broader than social media privacy: It would add privacy protection to all account online information protected by a password or some other form of special access.

“Our hope is to have a final act ready for consideration by state legislatures later in 2016,” Judge Samuel A. Thumma, chair of the ULC Study Committee on Social Media Privacy, told Bloomberg BNA Nov. 25.

Thumma, vice chief judge for the Arizona Court of Appeals, said the committee considered a revised draft in late November and will meet again to discuss it in early 2016.

The drafting committee's proposal will get final consideration by the ULC Committee of the Whole at its July 2016 meeting in Stowe, Vt.

Consent and Coercion

Individual consent and institutional coercion are at the heart of the online account privacy issue, Dennis Hirsch, a law professor at Capital University in Columbus, Ohio, and drafting committee reporter, said.

If giving consent means the difference between employment or school admission, “there’s a lot less freedom for the individual to say ‘no,’ ” Hirsch told Bloomberg BNA Nov. 25. The power these institutions have over individuals can make social media access requests “particularly coercive,” he added.

State Laws Key

When the drafting committee was formed in July 2014, 17 states had enacted legislation addressing some aspects of social media privacy. Today, 23 states have a social media privacy law on the books, according to the National Conference of State Legislators. These laws vary in scope: some solely address employment or education, while some address both situtations.

Five states enacted social media privacy legislation in 2015: Connecticut, Delaware, Maine, Montana and Virginia.

Given the variety of laws in place, the ULC is looking to bring consistency and uniformity to social media privacy, particularly in states that have yet to enact legislation, Hirsch said.

Employers who have facilities generally support for uniform laws, Hirsch added. This fact could give the ULC's uniform law proposal traction when state lawmakers see it.

Both Thumma and Hirsch said they do not expect Congress to legislate in this area in the near future. Congressional inaction makes statehouses the “most potent” arena for protecting adult online communication rights, Hirsch said.

To contact the reporter on this story: Bebe Raupe in Cincinnati at braupe@bna.com

To contact the editor responsible for this story: Thomas O'Toole at totoole@bna.com