Monday, February 18, 2013
The Social Networking Online Protection Act (SNOPA) was recently reintroduced by Congressman Eliot Engel of New York. SNOPA is the first bipartisan federal legislation designed to protect the digital privacy of employees, job applicants, students, and student applicants in the Social Media Age. The legislation may also provide a legal liability shield to businesses and academic institutions that may make it difficult for litigants to claim that these entities have a legal duty to monitor the personal digital accounts of their employees and/or students.
The right to digital privacy needs to be statutorily strengthened in the United States. Last year, the Supreme Court in U.S. v. Jones ruled that the government needs a warrant in order to place a GPS device onto a suspect's car. The Jones' decision demonstrates that the judiciary recognizes that people still have an expectation of privacy in the Social Media Age.
At this point, there have been only a handful of publicized examples where employees have alleged that their employer and/or a company with whom they interviewed with requested access to their personal digital accounts. This may be an underreported problem because according to a 2012 Harris Interactive Survey, 37% of hiring managers utilize social networking sites to screen candidates.
Without the protections that SNOPA provides how long will it be before it becomes commonplace for employers to require job applicants and/or employees provide access to personal password protected digital accounts as part of the employment process? In 2008, Congress enacted the Genetic Information Non-Discrimination Act (GINA) to bar employers from using genetic information when making employment decisions. GINA was not enacted because of a high profile incident where an employer required a candidate to submit his genetic information as part of the application process; it was enacted as a pre-emptive measure. In contrast, there are already multiple verifiable situations where employers are requiring job applicants provide their personal digital credentials as part of the application process.
While there have only been a handful of publicized incidents where employers are requiring access to their candidates' personal password protected digital content, thousands of students across the country are being required to turn over their digital usernames and/or passwords and/or Facebook Friend a school administrator and/or install cyberstalking software in order to attend a public school, keep a scholarship or participate in extra-curricular activities.
There have been multiple incidents where public school students have been forced without reasonable suspicion to turn over their personal Facebook and/or email usernames and passwords to school administrators. Universities across the country are requiring student-athletes to register their social media user names and/or Facebook Friend school officials and/or install cyberstalking software to track and archive their personal digital activity.
With access comes responsibility. Last year, a former Library of Congress employee alleged in a lawsuit that because his former supervisor viewed one of the groups he liked on Facebook he was discriminated against. The family of Yardley Love, a University of Virginia (UVA) student-athlete who was murdered on UVA's campus by her former boyfriend George Huguely (also a UVA student-athlete), is suing UVA and school employees for $30 million dollars for failing to properly protect their daughter.
Love's family alleges that UVA and its employees knew or should have known Huguely was a danger to Love because Huguely was not properly disciplined for past known inappropriate conduct because he was a star student-athlete. While it is too soon to speculate what type of evidence Love's family will introduce during legal proceedings, if UVA and/or its employees had access to Huguely's or Love's personal digital accounts and missed and/or intentionally ignored content that may have indicated a potential problem this may create tremendous legal liability for UVA and/or its employees.
If SNOPA is enacted students will not have to worry about being required to provide access to their personal digital accounts in order to attend the school of their dreams or keep their scholarships. In addition, academic institutions that do not violate the law may have a strong legal liability shield against litigants who claim schools have a legal duty to become the social media police.
Protecting personal digital privacy will help grow the economy and foment new technological breakthroughs. If people believe their personal password protected digital thoughts, ideas, and creations are statutorily protected they will increase their usage of Dropbox, Microsoft SkyDrive, Google Plus, Facebook, etc... It is vital for our country's competitive future to implement public policy that encourages increased digital platform participation in our increasingly interconnected world.
SNOPA would encourage widespread consumer adoption of cloud based platforms because users will not have to worry that their employer or school may require they provide access to their personal password protected digital accounts absent a judicial order. SNOPA is bipartisan win-win legislation that protects employers, employees, job applicants, schools, students, and student-applicants.
To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.
Copyright 2013 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
(Full Disclosure: I am working with Congressman Engel's office on this bill.)