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Demanding Access to an Employee’s Facebook Account May Give Employee Access to Employer’s Bank Account

by Martin Salcedo, Esq. - The Human Equation on 7/26/2012
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Social media websites like Facebook have become the new water cooler. Once discussions (and gossip) about the workplace, supervisors and co-workers moved online, employers started getting curious about who was saying what to whom.

This begs the question: Can an employer gain access to an employee’s social media account by “force-friending” or demanding passwords? The still-developing answer to this question appears to be no.

Like many traditional institutions, the law has a hard time keeping up with progress. To maintain balance, developing laws require the inevitable back-and-forth struggle between competing interests. Unfortunately, the time needed for this evolution is missing when the future appears sooner than expected. The result is a gap between yesterday’s law and today’s reality.

Despite the current lack of clarity, however, indicators suggest that employers could face liability for demanding access to an employee’s social media account.

Consider a recent federal case in New Jersey involving allegations that an employer allegedly coerced, strong-armed or threatened an employee to provide access to her Facebook account. The employee’s lawsuit included a claim brought under the New Jersey Wiretapping and Electronic Surveillance Control Act and a claim for common law invasion of privacy.

The court dismissed the employee’s wiretapping claim because the New Jersey law, which protects electronic communications during transmission, does not protect electronic communications once they are received by the recipient and stored in, for example, an employee’s social media account. According to the court, unauthorized access to electronic communications is not covered by New Jersey’s wiretapping law. Importantly the court noted that it would also not be covered by federal wiretapping laws.

Though the court rejected the wiretapping claim, the court did hold that the employer’s actions could be considered an invasion of the employee’s privacy.

A common law invasion of privacy claim requires the plaintiff to prove: 1) her solitude, seclusion or private affairs were intentionally infringed upon, and 2) that the infringement would highly offend a reasonable person. Since expectations of privacy are established by general social norms and must be objectively reasonable, the employee’s subjective belief that her Facebook account is private is irrelevant.

The court concluded that since the employee actively took steps to protect her Facebook posts from public viewing, she may have had a reasonable expectation of privacy. Noting that a jury typically determines whether an expectation of privacy is reasonable, the court held that the employee’s claim for common law invasion of privacy could proceed.

In addition to confirming that an employer can face liability for forcing access to an employee’s social media account, the court made the following observations:

  • Privacy in social networking is an emerging but underdeveloped area of case law.
  • Some cases hold there is no reasonable expectation of privacy for material posted on an unprotected website, while others hold there is an expectation of privacy for individual, password-protected online communications.
  • Courts have yet to develop a coherent approach for communications falling somewhere in the middle.
  • While most courts acknowledge the concept of limited privacy, they differ dramatically in how far they believe this concept extends. For example, one court held that disclosing facts to 60 people did not render them public, while another held that disclosing facts to two people negated any reasonable expectation of privacy.

Though illustrative, these observations do little more than confirm the current state of uncertainty. However, those wanting clarity may soon find—for better or worse—state and federal legislation that will define the extent to which an employer may request access to an employee’s social media account.

Several states, including Delaware, New Jersey and California, have introduced legislation prohibiting employers from requesting employees’ passwords to their social media accounts. At the federal level, the Password Protection Act and the Social Networking Online Protection Act are examples of similar legislation that have been introduced in 2012. Such legislation should presumably clarify the law in this area.

In the meantime, employers should avoid the impulse to take potentially inappropriate action simply because the boundaries of permissible conduct are blurry. Though the exact location of the line is unknown, the recent New Jersey case confirms that there is a line and that it can be crossed.

If you would like to learn more about potential employment-related liabilities, please view our library of online courses or contact us.

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