Bills Advancing in Delaware, New Jersey Would Restrict Social Media Access Demands

By Lorraine McCarthy  

PHILADELPHIA--Bills advancing in state legislatures in New Jersey and Delaware would bar employers and postsecondary schools from requiring current or prospective employees or students to disclose the user names or passwords for their personal social media accounts.

Legislative sponsors in both states said they drafted their bills in response to reports of businesses and higher education institutions demanding Facebook log-in information from applicants as part of the interview process.

In a statement, Delaware state Rep. Darryl M. Scott (D) said the practice is “not only an invasion of privacy, but during a time when jobs are scarce and people are looking for work, this is tantamount to an ultimatum--give us your password or you won't get this job.’’

“It's really no different than asking someone to turn over a key to their house.’’--Assemblyman John Burzichelli (D), a cosponsor of the New Jersey legislation

Scott sponsored the Delaware Workplace Privacy Act (H.B. 308), which was released by the House Telecommunications, Internet & Technology Committee May 17, and the Delaware Higher Education Privacy Act (H.B. 309), which was reported by the same committee May 3. Both measures will be considered next by the full House.

Most Provisions Similar ...

The New Jersey bills--A. 2878, pertaining to employers, and A. 2879, relating to institutions of higher education--were reported by the Assembly Consumer Affairs Committee May 10 and are in position for floor votes in the lower chamber. Legislation identical to A. 2879 (S. 1916) is pending in the New Jersey Senate Labor Committee.

Similarities in the bills under consideration in the two states outnumber the differences.

Both states would prohibit employers or post-secondary education institutions from requiring employees, students, or applicants to provide access to their social networking sites through an electronic communications device by disclosing passwords or other account information.

In addition, both states would bar retaliation, discrimination, or discipline against current or prospective employees or students who refuse to disclose information that would provide access to their personal social networking accounts.

Delaware also would prohibit employers or academic institutions from accessing current or prospective employees' or students' social networking site profiles or accounts indirectly, through another person who is a social networking contact.

... But Bills Part Ways on Penalties, Exceptions.

Unlike the New Jersey bills, which provide no exceptions, the Delaware measures carve out exceptions for employers in the financial services industry and for investigations of suspected criminal activity by an academic institution's public safety department or police agency.

The bills under consideration in the two states also differ with regard to penalties.

Penalty provisions are absent in the Delaware legislation, but in New Jersey, an aggrieved person would have one year to file a civil suit in state court seeking injunctive relief or compensatory and consequential damages incurred as a result of the violation, and attorneys' fees.

Penalty provisions are absent in the Delaware legislation. New Jersey would allow individuals to seek damages and has penalties for employers.

In addition, a violation by an employer in New Jersey would be subject to civil administrative penalties of up to $1,000 for a first offense and $2,500 for subsequent violations.

“In this job market especially, employers clearly have the upper hand,’’ Assemblyman John Burzichelli (D), a cosponsor of the New Jersey legislation, said in a statement. “Demanding this information is akin to coercion when it might mean the difference between landing a job and not being able to put food on the table for your family. This is a huge invasion of privacy that takes 'Big Brother’ to a whole new level. It's really no different than asking someone to turn over a key to their house.’’

By Lorraine McCarthy  


New Jersey A. 2878 is available at http://www.njleg.state.nj.us/2012/Bills/A3000/2878_I1.PDF. A. 2879 is available at http://www.njleg.state.nj.us/2012/Bills/A3000/2879_I1.PDF.

Delaware H.B. 308 is available at http://op.bna.com/pl.nsf/r?Open=kjon-8ulp3w. H.B. 309 is available at http://op.bna.com/pl.nsf/r?Open=kjon-8ulp69.