California Adopts New Social Media Privacy Protections for Employees and Students

By J. Bradford Currier and Marc Martin

California employers and universities will no longer be permitted to ask employees and students for access to their social media accounts under a pair of bills recently signed into law. The legislation comes in response to concerns from state officials that some businesses were requiring employees and prospective employees to provide access to their social media accounts in order to conduct background checks and take disciplinary action. State officials were also concerned with universities using social media to monitor student behavior, particularly for student athletes. The California laws follow similar legislation passed by Maryland and Illinois, as well as federal legislation currently under consideration by Congress, and poses new restrictions on employers and educators from using online material to take action offline.

The bills define “social media” as not only the user’s account information but also a user’s social media content, including videos, photos, blogs, text messages, email, and web site profiles. Under Assembly Bill 1844, employers are prohibited from requiring employees or prospective employees to: (1) disclose their username or password; (2) access personal social media in the presence of the employer; or (3) divulge any personal social media information, and employers may not take any disciplinary action against an employee for refusing to comply with such a request. Employers may seek social media information when accessing an employer-issued electronic device, and the new legislation is not intended to impede investigations of workplace misconduct or employee violation of the law. The legislation also states that California’s labor commissioner is not required to investigate alleged violations of the new law. Senate Bill 1349 similarly prohibits universities from asking a student, prospective student, or student group to disclose or access personal social media information and further prohibits the universities from taking disciplinary actions against students who refuse such requests. Universities will also be required to post its social media privacy policy on the institution’s website. The legislation states that the restrictions do not affect a university’s right to investigate or punish student misconduct.

According to the California governor’s office, the new laws will protect residents from “unwarranted invasions” of privacy. However, critics of the bills suggest that the new restrictions may prevent employers from adequately investigating cases of workplace harassment and universities from ensuring their student athletes comply with NCAA rules.

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