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ACALL FOR UNCLE SAM TO GET BIG BROTHER OUT OF OUR KNICKERS: PROTECTING PRIVACY AND FREEDOM OF SPEECH INTERESTS IN SOCIAL MEDIA ACCOUNTS Michelle Poore * I. INTRODUCTION No one should be naïve enough to believe that content in social media accounts is entirely private. However, recently-exposed demands from public and private employers and academic institutions for access to such accounts of applicants, employees, and students, as well as the monitoring of personal social media accounts by these entities, go too far. They evoke thoughts of George Orwell s fictional world of Big Brother, in which cameras spied ominously into all facets of everyday lives, 1 and they are akin to asking for a key to someone s house or going through private mail. 2 Such invasions ought to be deemed a violation of information privacy, but the public nature of social media will often defeat claims of privacy interests and expectations in social media accounts. They could present freedom of speech concerns as well, if they restrict, or punish an individual for, speech protected by the First Amendment, 3 labor laws regarding collective speech, 4 whistleblower protections, 5 or antidiscrimination laws. 6 Of equal concern, employers and academic institutions that pry could face liability based upon their actions. What they learn about their employees or students could give rise to a duty to act or warn, and they might fail to take adequate action. Additionally, they could learn that an individual is a member of * Lieutenant Colonel, U.S. Army Judge Advocate General s Corps. Presently serving as the Chief of the International Law Branch, Office of The Judge Advocate General, Washington D.C. The views expressed in this paper are those of the author and not The Judge Advocate General s Corps, the U.S. Army, or the Department of Defense. 1. GEORGE ORWELL, 1984 (1949). 2. Maryland Becomes First to OK Password Protection Bill, FOXNEWS.COM (Apr. 20, 2012), (quoting American Civil Liberties advocacy and policy strategist Allie Bohm). 3. U.S. CONST. amend. I. 4. See, e.g., 29 U.S.C. 157 (2012). 5. See, e.g., 5 U.S.C. 2302(b)(8) (2012). 6. See, e.g., 42 U.S.C. 2000e-16 (2012). 508 NORTHERN KENTUCKY LAW REVIEW [Vol. 40:3 a protected class, and any adverse action or inaction with regard to that individual could be, or appear to be, discriminatory. While existing federal and state constitutions and statutes, as well as state common law, may provide some protection for employees and students from such intrusions, they are inadequate for a variety of reasons. In many cases, such laws were conceived prior to the dawn of social media, and therefore were not designed to protect interests they could not anticipate. Additionally, social media exposes information to more than just small, discrete groups of people, which, under traditional information privacy tort laws, would defeat any claim of an enduring privacy interest in the information. Finally, applicants and employees might provide consent to an employer s access of their social media accounts out of fear that they might not be hired or be fired, especially in at-will employment arrangements. Students similarly could face comparable pressure to provide coaches and teachers access to their social media accounts as a condition for participation in athletic and other extracurricular activities. Therefore, to adequately protect privacy interests in social media accounts, legislatures need to create statutes specifically tailored to the unique privacy concerns created by social media and with appreciation for the leverage that employers and academic institutions wield over prospective and current employees and students in today s competitive environment. While employers and academic institutions have valid interests in monitoring users on their own networks for reasons related to security, productivity, protecting confidential and proprietary information, and protecting their reputations and brands, 7 the legislation can carve exceptions for such monitoring, and at the same time, shield off-duty social media activity and protected social media communications in the workplace and academic setting from invasions of privacy. California, Delaware, Illinois, Maryland, Michigan, and New Jersey have passed laws prohibiting employers, academic institutions, or both from demanding access to social media accounts of employees or students. 8 Several other state legislatures are considering similar bills. 9 While these developments 7. See Jill L. Rosenberg, How Social Networking is Changing the Face of Labor and Employment Law, 880 PLI/LIT 489 (Mar. 30, 2012); Stephanie Clifford, Video Prank at Domino s Taints Brand, N.Y. TIMES, Apr. 16, 2009, at B1 (describing events where two employees were fired after posting a videotape of themselves engaging in a prank that involved numerous health-code violations, including putting cheese in one employee s nose and putting nasal mucus on sandwiches being prepared for delivery). 8. CAL. [LAB.] CODE 980 (2012), CAL. [EDUC.] CODE (2012), DEL. CODE ANN. tit. 14, 94 (2012), 820 ILL.COMP.STAT.ANN. 55/10 (2012), MD.CODE ANN., [LAB.&EMPL.] (West 2012), MICH.COMP.LAWS ANN (2012), N.J. STAT.ANN. 18A:3-30 (2012). 9. A summary and compilation of links to these laws is available at National Conference of State Legislatures, Employer Access to Social Media Usernames and Passwords 2013, aspx (last visited Apr. 16, 2013). For proposed state legislation relating to employers, see: S. 2013] A CALL FOR UNCLE SAM TO GET BIG BROTHER OUT 509 are laudable, some of the enacted laws and proposed legislation leave gaps and loopholes for circumvention. Some fail to provide exceptions for employers and academic institutions to: permit social media monitoring on their own computer systems and services, to request information regarding social media usage of employees and students in order to comply with financial industry rules, and to investigate allegations of employee and student misconduct. Federal legislation could provide a comprehensive set of protections with appropriate exceptions and resolve apparent conflicts between state laws and other federal laws in this subject area. In 2012, Congress rebuffed an attempt to implement legislation prohibiting employers from demanding passwords to social media accounts. However, there are indications that the efforts could be revived; members of Congress recognize the need for legislation in this area, because existing privacy and freedom of speech protections are not enough. Congress needs to resurrect this effort soon and address the invasive prying of academic institutions, as well as that by public and private employers. Part II of this paper will discuss the intrusive actions that public and private employers and academic institutions have taken regarding private social media accounts. Part III explains why such actions might violate information privacy and freedom of speech rights and could give rise to unanticipated liability on the part of the snooping entity. Finally, Part IV will explore legislation that has been 1411, 51st Sess, 1st Reg. Sess. (Ariz. 2013); H.R , 69th Gen. Assem., 1st Reg. Sess. (Colo. 2013); H.R. 5690, Jan. Sess. (Conn. 2013); S. 159, Jan. Sess. (Conn. 2013); H.R. 308, 146th Gen. Assem. (Del. 2012); H.R. 117, Reg. Sess. (Ga. 2013); H.R. 149, Reg. Sess. (Ga. 2013); H.R. 713, 27th Leg. (Haw. 2013); S. 207, 27th Leg. (Haw. 2013); H.R. 127 (Iowa 2013); H.R. 272 (Iowa 2013); H.R. 2092, Sess. of 2013 (Kan. 2013); S. 53, Sess. of 2013 (Kan. 2013); H.D. 503 (Mass. 2013); H.D (Mass. 2013); S. 852 (Mass. 2013); H.R. 293, 88th Sess. (Minn. 2013); H.R. 611, 88th Sess. (Minn. 2013); S. 484, 88th Sess. (Minn. 2013); S. 596, 88th Sess. (Minn. 2013); H.R th Gen. Assem., 1st Reg. Sess. (Mo. 2013); H.R. 286, 97th Gen. Assem., 1st. Reg. Sess. (Mo. 2013); H.R. 706, 97th Gen. Assem., 1st Reg. Sess. (Mo. 2013); S. 164, 97th Gen. Assem., 1st Reg. Sess. (Mo. 2013); S. 195, 63rd Leg. (Mont. 2013); H.R. 379, 2013 Sess. (N.H. 2013); H.R. 414, 2013 Sess. (N.H. 2013); H.R. 2878, 215th Leg. (N.J. 2012); S. 1898, 215th Leg. (N.J. 2012); S. 1915, 215th Leg. (N.J. 2012); S. 371, 51st. Leg., 1st Sess. (N.M. 2013); H.R. 443, Reg. Sess. (N.Y. 2013); S. 1701, Reg. Sess. (N.Y. 2013); S. 2434, Reg. Sess. (N.Y. 2012); H.R. 1455, 63rd Leg. Assem. (N.D. 2013); S. 351, 129th Gen. Assem., Reg. Sess. (Ohio 2012); H.R. 2654, 77th Leg. Assem., Reg. Sess. (Or. 2013); S. 344, 77th Leg. Assem., Reg. Sess. (Or. 2013); S. 499, 77th Leg. Assem., Reg. Sess. (Or. 2013); H.R (Pa. 2012); H.R. 5255, Jan. Sess. (R.I. 2013); H.R. 5105, 119th Sess. (S.C. 2012); H.R. 318, 83rd Reg. Sess. (Tex. 2013); S. 118, 83rd Reg. Sess. (Tex. 2013); H.R. 100, 2013 Gen. Sess. (Utah. 2013); S. 7 (Vt. 2013); and S. 5211, 63rd Leg., Reg. Sess. (Wash. 2013). For proposed state legislation relating to academic institutions, see: H.R. 1023, 27th Leg. (Haw. 2013); H.R. 64, 98th Gen. Assem. (Ill. 2013); H.R. 127, (Iowa 2013); H.R. 2094, Sess. of 2013 (Kan. 2013); H.R (Md. 2013); S. 838 (Md. 2013); S. 422, 51st. Leg., 1st Sess. (N.M. 2013); H.R. 2654, 77th Leg. Assem., Reg. Sess. (Or. 2013); S. 499, 77th Leg. Assem., Reg. Sess. (Or. 2013); H.R. 5255, Jan. Sess. (R.I. 2013); H.R. 451, 83rd Reg. Sess. (Tex. 2012); S. 416, 83rd Reg. Sess. (Tex. 2013); and H.R. 100, 2013 Gen. Sess. (Utah 2013). 510 NORTHERN KENTUCKY LAW REVIEW [Vol. 40:3 enacted or proposed at the state and federal level to protect privacy interests in social media accounts, and it will propose a way-ahead incorporating the best parts of the enacted laws or bills under consideration into a comprehensive federal law. II. INTRUSIONS OF EMPLOYERS AND ACADEMIC INSTITUTIONS INTO PRIVATE SOCIAL MEDIA ACCOUNTS Along with our Facebook and MySpace friends and Twitter followers, many other individuals might be keeping tabs on our online activity. While it can be anticipated that ex-boyfriends and girlfriends may occasionally take a peek at a former paramour s social media activity to see who has replaced him or her, or that a nosey neighbor may seek to gather a little gossip on the Joneses, other less-likely individuals and entities might be snooping, as well. Savvy debt collectors are using Facebook to engage in a strategy of friending debtors who trust too much and accept friends requests from just about anyone. 10 This enables collection agencies to use Facebook and instant messages as additional venues for trying to convince debtors to pay up and to determine if the debtor has collectible assets, which might be described or photographically depicted on the debtor s social media profile. 11 Similarly, in the legal profession, an attorney might peruse an opposing party s social media account content that has not been shielded from public view in order to find information that could be beneficial to a client in litigation, particularly in domestic relations cases. 12 Employers have a valid interest in investigating prospective hires to determine if they have unsavory backgrounds or tendencies that could damage the reputation of the employer or indicate that the employee would not be a good fit for the company. 13 They may want to keep tabs on the social lives of their 10. See Rachel Brown, Who s Watching You on Facebook, YAHOO! FINANCE (Apr. 10, :35 PM), Vanessa Romo, Elusive Debtors Foiled by Their Social Media Sites, NPR (July 12, :00 PM), 11. See Herb Weisbaum, Debt Collectors Troll Facebook Are They Going Too Far? MSNBC.COM (Apr. 25, 2012), 12. See, e.g., Leanne Italie, Divorce Lawyers: Facebook Tops in Online Evidence in Court, USA TODAY (June 29, :41 AM), facebook-divorce_n.htm; Drew Bowling, How Lawyers Use Twitter, Facebook in Court Cases, WEBPRONEWS (Apr. 12, 2012), 13. See Patricia Sanchez Abril, Avner Levin, & Alissa Del Riego, Blurred Boundaries: Social Media Privacy and the Twenty-First-Century Employee, 49 AM. BUS. L.J. 63 (2012) (discussing surveys of employers indicating that a large number of them research job candidates using publicly available content on applicant s social networking profiles). 2013] A CALL FOR UNCLE SAM TO GET BIG BROTHER OUT 511 current employees to ensure that they are not engaging in activities that are potentially harmful to the business. With the advent of social media websites, employers can now peer into the private world of future and current employees with ease, in ways that previously would have required the hiring of a background investigator. While the scanning or monitoring of social media sites for publicly-available information by debt collectors, members of the legal profession, and employers seems moderately intrusive and somewhat underhanded, it generally does not constitute an invasion of privacy under federal or state law. However, there is a disturbing emergence of reports of demands by public and private employers and academic institutions for access to users private social media account content. Such entities request the username and password for the user s account, require that the user become an online friend of someone at its organization, consent to monitoring by a third-party application, or require that the user display his or her social media postings to someone from the entity during an interview or background investigation. A. Employer Actions The Maryland Department of Public Safety and Corrections was in the news in 2011 for requiring prospective hires and current employees to voluntarily provide their social media site usernames and passwords as part of a background investigation. 14 The policy had been in effect for about a year, and the Department accessed social media accounts allegedly to check for gang affiliations, in order to deter gang violence in Maryland prisons. 15 A report showed that, of 2,689 applications, seven candidates were rejected in part due to the information found on their social media accounts, and one was rejected solely on account of his social media account content. 16 After learning of the Department s practice, the American Civil Liberties Union (ACLU) of Maryland issued a press release and news story about the policy. 17 Both highlighted the experience of a current employee of the Department who felt compelled to provide access to his social media accounts or risk not being recertified to work in Maryland s prison system. 18 Shortly after the ACLU brought attention to this matter, Maryland s Secretary of Public Safety and Correctional Services informed the ACLU that the practice of 14. Aaron C. Davis, Maryland Corrections Department Suspends Facebook Policy for Prospective Hires, WASH. POST (Feb. 22, :58 PM), 15. Id. 16. Maryland Becomes First to OK Password Protection Bill, supra note Id. 18. Id. 512 NORTHERN KENTUCKY LAW REVIEW [Vol. 40:3 requesting access to social media sites of prospective and current employees had been suspended. 19 The ACLU brought to light similar cases. The Richmond Times-Dispatch reported that as of January 1, 2012, Anyone seeking to become a Virginia state trooper must make available the contents of his or her social media accounts including private profiles as part of the department s extensive backgroundscreening process. 20 Although the prospective hires do not have to surrender their usernames and passwords, they must list all social media accounts and permit an interviewer to review the contents of their social media accounts during the interview process. 21 The ACLU also highlighted a blog posting showing a photograph that allegedly depicted an application form for a clerical position at a North Carolina police department. The form featured a line that asked, Do you have any web page accounts such as Facebook, Myspace, etc...? If so list your username and password. 22 At a Michigan elementary school, a teacher s aide was fired for refusing to provide her Facebook password to the school district. 23 A parent complained to the school that the aide posted a photograph on Facebook of a co-worker with pants around her ankles. 24 School administrators asked the employee for her Facebook password to investigate the complaint. After she refused, the school district informed her that in the absence of you voluntarily granting Lewis Cass ISD administration access to you[r] Facebook page, we will assume the worst and act accordingly. 25 She was given a ten-day suspension, and placed on administrative leave without benefits. 26 Although less invasive but still disturbing, Sears used an alternate means for viewing employee applicant s Facebook information. 27 With an applicant s approval, it employed a third-party application to view the prospective hire s 19. Id. 20. Ategah Khaki, New Examples of Facebook Password Demands, Facebook s Response, and the Need for a New Law, ACLU.ORG (Mar. 23, 2012, 3:29 PM), 21. Id. 22. Id. 23. Marilisa Kinney Sachteleben, Michigan School Employee Fired for Refusing Facebook Access, YAHOO NEWS (Apr. 3, 2012), 24. Id. 25. Id. 26. Id. 27. Torie Bosch, Can Legislation Preventing Employers from Requesting Facebook Passwords Really Protect Privacy?, SLATE (Mar. 28, 2012, 4:20 PM), _passwords_to_invade_applicants_privacy_.html. 2013] A CALL FOR UNCLE SAM TO GET BIG BROTHER OUT 513 Facebook basic information, without examining the wall content. 28 Given that even basic information might disclose intimate details about an individual, as well as religious and political affiliations and views, Sears could face discrimination complaints if it takes adverse action based upon what the thirdparty application reveals to it. B. Academic Institution Actions More intrusive third-party applications are used by some colleges and universities to monitor athletes, looking for obscenities, offensive commentary or words like free, which could indicate that a player has accepted a gift in violation of N.C.A.A. rules. 29 Varsity Monitor is a one such application. Its website describes the service it provides as the following: We monitor the social media interaction of athletes for questionable conduct that could negatively affect their reputation or Personal Brand. We monitor for actions that could endanger their future career and sponsorship opportunities as well as damage the brand of their team, league and institution. 30 Major universities pay between $7,000 and $10,000 each year to Varsity Monitor to track their athletes. 31 Given that many athletes are forced to consent to such monitoring in order to keep playing on their university s sports team, Varsity Monitor s purported interest in personal brands and individual reputations seems a little insincere and paternalistic. As an alternative, a university might require an athlete or student to provide a coach or administrator access to his or her social media account by friending the coach or administrator. For example, the University of North Carolina handbook states the following: Each team must identify at least one coach or administrator who is responsible for having access to and regularly monitoring the content of team members social networking sites and postings. The athletics department also reserves the right to have other staff members monitor athletes posts. 32 Given that academic institutions and employers only recently began demanding access to social media accounts of applicants, students, and employees, the courts have not dealt with many complaints seeking redress for 28. Id. 29. Pete Thamel, Tracking Twitter, Raising Red Flags, N.Y. TIMES (Mar. 30, 2012), 30. VARSITY MONITOR THE ATHLETICS INDUSTRY SOCIAL MEDIA MONITORY SOLUTION, (last visited Apr. 16, 2013). 31. Thamel, supra note Colleges Demand Student Athletes Give Up Facebook Privacy, EDUCATION NEWS (Mar. 12, 2012), 514 NORTHERN KENTUCKY LAW REVIEW [Vol. 40:3 such demands under traditional information privacy and freedom of speech theories. Regardless, aggrieved individuals are likely
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