Facebook Not Friends With Legislature's Social Media Privacy Bills

Mar 9, 2015

Facebook doesn’t “like” two bills being considered by state legislators – one that would allow certain employers to require access to their employees’ social media accounts, and one that would give personal representatives access to a deceased person’s digital records, Talk Business & Politics reports.

House Bill 1087 by Rep. Nate Bell, R-Mena, would allow entities working with minors as well as religious entities to require access to employees’ social media accounts. Employers at schools, daycares, and summer camps could require their employees to “friend” them on Facebook, for example. The bill would amend a 2013 law prohibiting any employer from having that requirement.

The bill passed the House, 91-1, on Feb. 23, with only Rep. Warwick Sabin, D-Little Rock, voting no. It has been referred to the Senate Committee on Public Health, Welfare and Labor.

“This bill was brought to me by summer camps because of the fear of hiring sexual predators, and so they need to have this extra ability to go in and make sure that this person that they are hiring isn’t actively involved in that subculture that exists. Nursing homes have a similar concern,” Bell told KATV News in an earlier report.

Bell was approached by Camp Ozark, a Mt. Ida residential Christian summer camp for children ages 7-17 that, prior to the 2013 law, used social media as a tool to evaluate the 650 college-aged workers it hires each summer.

Owner Sam Torn said his camp has never had an incident involving a camp employee and wants to use social media to make sure it doesn’t have one. He said sexual predators are drawn to organizations that serve youth. Most predators don’t have criminal backgrounds, but they do use social media to prey on children, he said. By having access to those accounts, Camp Ozark might flag predators who could otherwise bluff their way through the hiring process.

“Social media is a criminal background check,” he said. “If we simply have to take someone at their word as to who they are and what they do, we’re not being allowed to build up the wall of safety that we would choose to build around our campers.”

But Jennifer Hanley, director of legal and policy for the Family Online Safety Institute, an organization whose purpose is to make the internet safer for young people, said the bill is well-intentioned but would have unintended consequences, particularly for young people seeking summer employment. Her organization advises young people not to friend adults who are not family members or close family friends.

“The worst-case scenario could be examples of someone kind of engaging in inappropriate behavior,” she said. “There could be sexual harassment over this. Older bosses could see a lot of personal information about kids – not just their email addresses or other things that they may not have to share, but pictures of family vacations, pictures of teenagers in a bathing suit or something like that that they wouldn’t normally see in a workplace situation.”

The bill has gotten the attention of Facebook. Spokesperson Andy Stone said, “Any legislation that requires employees to give employers access to their private communication is problematic, but this bill goes even further by compelling minors to provide an adult employee or supervisor access to their social media accounts.”

Facebook also is opposed to House Bill 1362, the Uniform Fiduciary Access to Digital Assets Act, by Rep. Matthew Shepherd, R-El Dorado. It would allow a deceased person’s personal representative access to his or her digital information. It passed 92-0 in the House Feb. 23 and has been referred to the Senate Committee on Judiciary.

Sen. Jeremy Hutchinson, R-Little Rock, a co-sponsor, said digital records sometimes are needed for executors to fulfill their fiduciary duties. The bill was recommended by the Uniform Law Commission, a national organization of lawyers who draft laws meant to be uniform across state lines.

The federal Electronic Communications Privacy Act (ECPA) requires digital providers to obtain lawful consent before releasing electronic communications. That consent must come from an electronic communication’s originator, addressee or intended recipient, according to NetChoice, a trade association of businesses engaged in electronic commerce. Service providers who disclose communications are liable under federal law, NetChoice’s website says.

House Bill 1362 permits only the disclosure of information allowed under the ECPA. It also says that custodians of electronic communications are immune from liability for acts of omission done in good faith. NetChoice says that approach still would put businesses in the position of complying with either state or federal law.

Hutchinson said he is meeting Monday with a Facebook lobbyist. Facebook’s Stone said the bill “would effectively ignore the wishes of all of those people when they die, set aside a century of settled law, and override the innovative tools and options companies provide to protect those accounts.”