Social Networks in the US: Employers Prohibited from Requiring Employees to Disclose their Passwords to Access their Accounts

The state of Rhode Island recently passed a new law on the protection of employee privacy on social networks. The new law prohibits employers from requiring employees, during job interviews or working hours, as the case may be, to disclose the password of their social networks accounts.

This law was made necessary by increasing abuses by employers. Many require the passwords of job seekers’ social network accounts and even exert pressure to access e.g. their Facebook profile. While it is now common for employers to conduct research on candidates and gather all kind of information, they can only access so-called “public” content. By seeking passwords from candidates, employers really wished to have full access to so-called “private” content configured to be shielded from everyone’s view, and thus to more interesting information as though they were close to the individual concerned. Such private content may be e.g. pictures, messages and other personal exchanges with other members of the social network. Likewise, the new law prohibits employers from compelling employees to add them as contacts, i.e as a “friend” on Facebook, so that the latter can indirectly access the account.

However, there is an exception that allows employers to access one or more social networks account (s) of their employee in their presence provided certain conditions are met. An employee may be required to provide their username and password only when an investigation is required, i.e. where there has been an infringement of employment law rules. But the law does not specify the circumstances in which the employer can reasonably rely on this exception. Harassment, which is prohibited under employment law, comes to mind, as it can materialize through exchanges on social networks.

To date, seven states have already enacted similar laws in the United States, particularly in Illinois and Louisiana, and the trend looks set to continue. Indeed, such laws are being enacted in 28 other states. Should we expect such provisions in Europe?