January 23

No protection yet for social media, email passwords in Maine

Legislators reject a bill to bar schools and employers from demanding access to private accounts, but, concerned about intrusiveness, they opt for more study.

By Steve Mistler smistler@pressherald.com
Staff Writer

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.”

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