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Testimony Regarding Online Social Media, Personal Online Accounts and Employment

Testimony of Nate Vogel on behalf of the New York Civil Liberties Union before the New York City Council Committee on Civil Service and Labor, Regarding Introduction 1106-2013, Relating to Online Social Media and other Personal Online Accounts and Employment

My name is Nate Vogel, and I am a legislative counsel with the New York Civil Liberties Union, on whose behalf I respectfully submit this testimony. I would like to thank the committee on Civil Service and Labor for inviting the NYCLU to provide testimony on Intro 1106. The NYCLU is a not-for-profit, non-partisan organization with almost 50,000 supporters around the state, including nearly 26,000 in New York City. The NYCLU is the foremost defender of civil rights and civil liberties in New York State.

We support Intro 1106. The bill would prohibit employers from requiring job applicants or employees to give the employer access to their private, personal online accounts. It has never been acceptable for an employer to go to an employee’s home, read his or her mail, peruse a personal diary or listen to the employee’s home phone calls. The same consideration should apply to all our private communications.

As more and more of our lives are lived online, employers here in New York and across the country are increasingly turning to social media to assist them in making decisions about hiring, promotion and retention. For many years, employers have searched for publicly available information about job candidates and existing employees on sites like LinkedIn and Facebook. A 2011 study found that 89 percent of employers use social media in their recruiting. A separate study in 2013 reported that 43 percent of hiring managers who use social media to research applicants had decided not to hire someone based on what they found online.

A recent trend has emerged and employers are now seeking access to information about employees and applicants that is maintained in social media fora but not publicly accessible because the employee or applicant has restricted his or her audience. Employers do this by requiring employees and applicants to grant them access to private accounts.

Last year, the AP reported the story of Justin Bassett. Mr. Bassett, a New York City-based statistician, applied for a new job. After searching for Bassett’s Facebook page and finding it restricted, his prospective employer asked for his log-in information. Mr. Bassett refused to give it, and he withdrew his job application.

But not everyone can afford to refuse an employer’s request. In 2010, Robert Collins testified before the Maryland state legislature about his application to be reinstated after a leave of absence as an employee of the Maryland Division of Corrections. When his interviewer asked for his social media account passwords, he felt like he could not say no without losing a job he needed. He turned over his Facebook password and the interviewer proceeded to log in and read through his private messages and posts.

The practice is not limited to employers asking for information from specific employees. After hearing Robert Collins’ story, the ACLU of Maryland learned that the Division of Corrections had a blanket policy of requiring login and password information from all job applicants.

An employer who demands account passwords from a job applicant or an employee intrudes deeply into the worker’s privacy. Social media messages and email may include intimate conversations between romantic partners. Searching through a Google account, an employer could scrutinize an employee’s web search history, learning about her political or religious affiliations. An account can reveal a person’s shopping history, disclosing anything from her taste in movies to her medical purchases. Combing through an applicant’s online accounts, an employer might be able to discern information upon which it would be unlawful to base a hiring decision, such as religious beliefs, citizenship status, pregnancy or sexual orientation.

Employers who sift through private messages on personal accounts also intrude on the privacy of the individuals who sent those messages to the applicant or employee. These third parties–who might be family members, friends, or a doctor setting up an appointment–expected their conversations to remain private. They have no ability to refuse the employer’s demands for access to those conversations.

When employers condition a job on access to deeply personal information, employees and job seekers face a difficult choice: Do I defend my privacy and the privacy of those who communicate with me? Or do I keep my job?
Protecting the privacy of online accounts is a vital reform, and one that is gaining momentum. Legislatures around the country are recognizing the need for reform. Just last month, New Jersey Gov. Christie signed a bill to protect workers’ online privacy. In all, ten states have passed bills protecting the online privacy of applicants and employees. And legislation has been introduced in at least thirty-six states, including New York. The NYCLU hopes that New York City joins the list of jurisdictions that have taken action to protect employee privacy.

Intro 1106 provides strong privacy protections for New York City workers. It will prohibit employers from requiring both employees and job applicants to provide access to online accounts, including social media fora like Facebook and Twitter, personal e-mail accounts, and online shopping accounts.

The bill bans actions that employers could use to circumvent the prohibition on demanding direct access. Specifically, it bars employers from requiring applicants to log into their personal accounts while an interviewer watches over the applicants’ shoulder. Intro 1106 also prohibits employers from requiring employees add them as friends or change their privacy settings.

Intro 1106 defines limitations that will ensure the bill does not interfere with legitimate supervision and investigation by employers. The legislation would permit employers to seek out and use information about an employee that is publicly available, and ensures that employers may access accounts to investigate unlawful actions by their employees. These provisions demonstrate that employees’ privacy does not need to be sacrificed to protect employers’ legitimate interests.

Intro 1106 is a positive step towards ensuring all New Yorkers can engage in the kinds of private communications and activities online that are critical for personal liberty and a free, democratic society. The NYCLU urges the Council Members to approve the bill.

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