AUGUSTA — A legislative committee voted Thursday to kill a proposal to prohibit school administrators and employers from requiring students and employees to provide passwords to their social media or private email accounts.
Instead, the Judiciary Committee approved recommending that the Legislature form a study commission that could lead to a comprehensive privacy bill next year.
The vote followed three extensive committee meetings on L.D. 1194, a bill submitted by Rep. Michael McClellan, R-Raymond, on behalf of the American Civil Liberties Union of Maine.
Lawmakers generally agreed that requiring disclosure of passwords is intrusive, but several wrestled with passing a bill that business leaders opposed because it could limit screening of job applicants, investigation of harassment disputes, or protection of proprietary information.
The idea raised similar concerns for school administrators. The Maine School Management Association said the bill would make it harder for administrators to prevent or investigate cyberbullying of students through Facebook and other social media.
Rep. Charlie Priest, D-Brunswick, proposed amending the bill to exempt employers, focusing the prohibition only on public schools at the high school level and below, but the amendment failed to gain enough votes.
It’s unclear how often Maine employers and school administrators request passwords to private email and social media accounts. A representative for the Maine School Management Association testified last week that administrators have asked students to disclose passwords during investigations of bullying complaints.
Several high-profile cases of employers and schools demanding passwords have surfaced nationally. In response, password protection bills have been enacted in more than a dozen states, according to the National Conference of State Legislatures. Privacy advocates hope that a state-by-state strategy will lead to a comprehensive bill in Congress, where multiple attempts to pass a federal privacy-protection law have stalled.
PROHIBITION CALLED PRO-BUSINESS
Despite several lawmakers’ willingness to pass L.D. 1194, members of the Judiciary Committee could not coalesce around a single initiative. Some wouldn’t support a bill that excluded employers, while others had concerns about exempting private schools and colleges.
Bradley Shear said some of the concerns expressed by lawmakers and business interests were shortsighted. Shear is a Washington, D.C.-area attorney who has helped draft social media legislation in Congress and several states, including a Michigan password protection law signed in 2012 by Republican Gov. Rick Snyder.
Shear said bills like Maine’s are actually pro-business because they limit employers’ legal liability. The more an employer knows about its employees, Shear said, the greater the chance of a lawsuit.
“With more access comes more responsibility,” he said. “If employers want access to everything that their employees are doing online, they’re going to get sued.”
In 2012, Shear said, a former management analyst at the Library of Congress sued his employer, claiming that he had been fired for “liking” the Facebook page for “My Two Dads,” a television show about same-sex parents.
Shear said businesses could be hit with more lawsuits if they have access to employees’ social media accounts but don’t do anything to prevent illegal activity.
“It helps businesses fend off lawsuits,” Shear said of password protection legislation. “It’s basically, ‘We’re going to protect employee and student privacy and we’re also going to give you a legal liability shield from being sued for not looking at people’s personal accounts.’ ”
But Rep. Jarrod Crockett, R-Bethel, said earlier this week that the Legislature was unlikely to prohibit employers from obtaining employees’ password information, citing opposition from the Maine State Chamber of Commerce and Gov. Paul LePage.
FORMS OF COMMUNICATION EVOLVING
On Jan. 14, Hank Fenton, the governor’s deputy counsel, wrote in a letter to the Judiciary Committee that the bill’s provision to enable employees to seek monetary damages if asked to surrender their passwords would “greatly change the employment law framework for the worse.”
“There are many good reasons for employers or schools to seek access to social media accounts on the rare occasions that such requests are deemed necessary by those this bill seeks to regulate,” Fenton wrote. “One clear example is the importance of vetting applicants for jobs that entail a large degree of public trust.”
Even if such positions were exempted in the bill, Fenton said, the LePage administration would oppose it because of concerns about safety in schools.
Oamshri Amarasingham of the ACLU of Maine had argued that schools would lose only the blanket authority to demand students’ passwords. She noted a provision in the bill to allow schools to access social media accounts in case of specific incidents of misconduct or bullying, after contacting parents.
Amarasingham told the committee last week that the law is needed because of the evolving ways that students and workers communicate.
“From our perspective, communications on the Internet are equivalent of talking on the telephone,” she said. “Schools can’t wiretap a student’s telephone if they hear that there’s bullying.”
Connie Brown, executive director of the Maine School Management Association, told the lawmakers that there have been instances in which school administrators have requested students’ passwords during investigations of bullying or harassment.
“We try to get parental consent,” she said, “but sometimes parents have information that they know will be harmful to their kids’ reputation.”
Congress has been reluctant to act on several password protection bills. Bills proposed in 2012 and 2013 stalled, but a new version could be considered this year.
Last year, Congress also blocked an amendment in the Cyber Intelligence Sharing and Protection Act that would have prohibited U.S. employers from requiring employees to give them their social media passwords.
Steve Mistler can be contacted at 791-6345 or at: