A reported trend of employers, prospective employers, and educational institutions asking people for their user IDs and passwords for social media accounts such as Facebook and Twitter has sparked a backlash that’s reached Lansing, as at least some state lawmakers — including one representing the lakes area of west Oakland County — want employers and schools to stop the practice. While one might argue that the bill is a bit over-reaching, and that lawmakers need only prohibit employers or schools from taking action against an employee, student, faculty or staff members for failing to disclose account access information, we don’t have a problem with enacting a law that bans even requests for access information. However, lawmakers would be wise to consider the need for legislation that makes it abundantly clear that a person opens his or herself up to civil action if they maliciously post false information on a social media site that besmirches an employer or educational institution.
State Rep. Aric Nesbitt’s (R-Lawton) House Bill (HB) 5523 — which would ban employers and educational institutions from requesting access information associated with a person’s social networking accounts — was introduced last month and forwarded to the House Energy and Technology Committee, where it awaits a hearing. Nesbitt says he’s pushing for a hearing in the committee and that he thus far “hasn’t seen any opposition” to the bill.
The proposal would also prohibit employers from firing, failing to hire, or otherwise discriminating against someone; or educational institutions from discharging, disciplining, failing to admit, or otherwise discriminating against a student or prospective student for refusal to provide their log-in information to their personal accounts on sites such as Facebook and Twitter.
Violations would be considered misdemeanor offenses punishable by imprisonment of up to 93 days and/or a fine of up to $1,000.
The bill includes a provision allowing the subject of a violation to file a civil action in circuit court and recover actual damages or $1,000, whichever is greater, and reasonable attorney fees and court costs.
For his part, Nesbitt has said the state needs to advance laws protecting private information; and since social networking sites allow people to determine for themselves what they share as public information and what they protect as private, or semi-private information, employers and education institutions should respect that distinction. He adds that one has “the right to share certain parts of their lives with the public, while sharing other parts with only friends and family.”
State Rep. Eileen Kowall (R-White Lake, Highland), a member of the House Energy and Technology Committee, said she support’s Nesbitt’s proposal, which is co-sponsored by state Rep. Kenneth Horn (R-Byron Center), chairman of the committee. In fact, Kowall said she had already submitted a request to the Legislative Services Bureau to draft a similar bill.
Yet, Kowall said there needs to be “some kind of repercussions” for someone posting information on social media networks that could be considered “libel” against an employer.
We can understand why employers and schools would seek access to a person’s social media accounts, which could yield a bounty of enlightening information about a person’s behavior, opinions, interests and affiliations. Yet imagine a world in which employers and schools are allowed to consider a person’s associations, ideological world view, thoughts on current affairs, or anything else when it comes to making decisions about hiring, firing, discipline, etc. Letting that scenario stand is an invitation to discrimination based on any number of different things that can be culled from a quick peek at a person’s Facebook account, for example.
People have a right to their own thoughts and opinions, and to support groups and causes; and to share such things with any one or more persons they want — and, conversely, to withhold such things from whomever they want. HB 5523 would help preserve such liberty.
We also agree with Kowall that a social media account shouldn’t serve as a shield against civil action following the malicious posting of false information about an employer, supervisor, teacher, dean, or any other person, for that matter. Purposely posting bogus information about your boss or academic advisor on Facebook is no different than printing and distributing a pamphlet rife with lies about a superior, or consciously making false statements about a person merely to harm them or their reputation.
So while lawmakers are considering the merits of HB 5523, they would be wise to mull whether it makes sense to spell out in statute that a person is not protected against a lawsuit if they post knowingly false information on a social media account as a means to hurt another person.