Illinois Prohibits Employers From Seeking Social Networking Passwords

On August 1, 2012, Illinois Governor Pat Quinn signed into law a bill that prohibits employers from requesting or requiring employees or prospective employees from providing “any password or other related account information” to gain access to the individual’s social networking account. Ill. Public Act 097-0875. By enacting the legislation, Illinois joins Maryland as states that prohibit employers from obtaining social media account password information. The law amends the Illinois Right to Privacy in the Workplace Act, 820 ILCS 55, and is effective January 1, 2013.

Illinois’ new social media legislation confirms that employers maintain the right to create lawful workplace policies that regulate the use of computer equipment, e-mail, and internet use. Moreover, the law also allows employers to monitor employee use of the employer’s electronic equipment and e-mail. Employers also may still obtain publicly available information concerning employees or prospective employees under the new law.

As part of the Right to Privacy in the Workplace Act, the law is subject to investigation and enforcement by the Illinois Department of Labor. Potential damages under the law include reasonable attorney’s fees if the violation is found to be willful and knowing.

This legislation comes in response to public criticism of reported incidences of employers seeking social media account password information for purposes of evaluating position applicants. Illinois employers who currently engage in such practices should be aware that any hiring policy or practice that requires applicants or employees to reveal such information will be a violation of Illinois law after the end of the calendar year.

Cross-posted to General Counselor.

 

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The Proper Procedure for Facebook Discovery, Part I

An individual is involved in a civil lawsuit against someone — a tort suit, an employment discrimination suit, a civil rights suit — and the opposing party requests production of everything in his or her Facebook account during discovery. The individual refuses, or produces some material but not others, and the requesting party moves to compel. How should the court respond?

This situation is coming up increasingly frequently, and it appears to be confounding in many cases for everyone involved — judges, attorneys, and the parties themselves. Many individual litigants are no doubt surprised by such requests; not being familiar with the ordinary rules of discovery, they may not have realized that suing someone, or being sued, means that all relevant documents must be turned over — which might include every half-witted Facebook post or photograph pertaining to some issue germane to the lawsuit (such as, e.g., the plaintiff’s emotional well-being). Businesses have lived for years with the knowledge that a single wayward email from the CEO can sink a lawsuit; now individuals are experiencing the litigation effects when every decision or even fleeting thought is permanently recorded and archived. And destroying relevant material after the prospect of litigation becomes clear just makes matters worse.

But individual parties are not the only ones surprised by the interaction between civil discovery rules and social networking materials. Judges and attorneys often seem not to know exactly how to categorize the materials on a site like Facebook: is it all one relevant document? Multiple documents? How should the material be produced? Can the material be sought directly from the site via subpoena? Is the material shielded from discovery in any way? This confusion has led in some instances to court orders I’ve criticized as requiring overly broad production of social networking materials, with parties unnecessarily compelled to turn over entire accounts or even, in some cases, passwords to those accounts so opposing counsel can peruse them at will.

By and large most of those cases have been state cases, but federal courts are starting to issue opinions on social networking discovery as well. Over at Eric Goldman’s Technology & Marketing Law Blog, Venkat Balasubramani points to a recent decision from a magistrate judge in the District of Nevada, Thompson v. Autoliv ASP, Inc., No. 09-cv-01375, 2012 U.S. Dist. LEXIS 85143 (D. Nev. June 20, 2012). In Thompson, the judge ordered production of 5 years’ worth of Facebook and MySpace posts, photographs, and other materials to opposing counsel for its review. On a quick read Thompson might appear to fit into the category of overbroad decisions, but, despite an insufficient number of caveats in the opinion for my taste, I don’t believe it is.

I want to spend this post detailing exactly what’s wrong with an order compelling production of an entire social networking account, and why I think courts issuing such orders are going off the rails.

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Speech by Proxy

On Friday I mentioned Tim Wu’s op-ed last week, which asked if machines “have a constitutional right to free speech”? The question is posed in such a way that the obvious answer seems to be “no,” so it naturally drew responses which simply pose the question the other way: Timothy Lee at Ars Technica asks, “Do you lose free speech rights if you speak using a computer?”, and Julian Sanchez suggests that Wu’s argument would effectively remove First Amendment protection from any speech communicated via a machine. Paul Levy and Eugene Volokh similarly argue that while machines obviously don’t have speech rights, the people using the machines do, and Wu’s examples (e.g., Google’s search results) are the speech of the humans who designed the algorithm behind it.

I think the distinctions here are trickier than any of these pieces, including Wu’s, let on. (Frank Pasquale appears to agree.) My own view, as suggested in my previous post, is that at least for copyright purposes, the more the machine contributes to the substance of the content, the less it is the speech of the humans behind it. But the distinction both First Amendment law and copyright impose is binary: something is either your speech or not your speech. Trying to figure out exactly where that transition occurs — even in principle — is difficult.

Let’s set up a spectrum of possibilities. So here’s the spectrum (click to enlarge):


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