House Bill 1739 was introduced by Rep. Matthew LoPresti (D, Ewa Villages- Ocean Pointe-Ewa Beach) and 18 co-sponsors, an unusually high number. It has cleared the Labor and Public Employment Committee and was heard Friday by the Judiciary Committee, which plans to vote on it next week.
“We need to expand our notions of privacy to include social interaction on the Internet,” LoPresti said in an interview Friday. “Just because it’s on the Internet does not mean it’s public.”
People send private messages via social media and often restrict some of their posts to “just friends” rather than showing them to everyone, he noted.
The bill would restrict employers from gaining access to employees’ social media activity that is not publicly available, with certain exceptions. LoPresti said the move is needed to update privacy rights in the digital age.
“When the Founding Fathers wrote the Constitution, there wasn’t email, there wasn’t social media,” he said. “But they wrote that you have the right of privacy of your ‘papers.’ How does that translate in the 21st century? I believe that translates to we have a right to the privacy of our files. We don’t have reams and reams of paper files anymore. We have digital files.”
The Fourth Amendment to the U.S. Constitution protects a citizen’s right to be “secure in their persons, houses, papers and effects, against unreasonable searches and seizures.”
HB 1739, HD 1, explicitly allows employers to gain access to private social media accounts in the course of investigations into matters such as harassment or discrimination claims as well as employee misconduct involving transfer of confidential information.
Those provisions were included after the Labor Committee heard the bill, in response to suggestions from the Hawaii Civil Rights Commission, the Chamber of Commerce of Hawaii and the State Privacy and Security Coalition Inc., a Washington, D.C.-based group made up of 25 major technology and media companies.
The bill does not hold employers liable for inadvertently capturing personal information during a lawful virus scan or firewall, unless they go on to share that information or use it to access an employee account.
At Friday’s hearing, technology experts asked legislators to broaden that provision beyond specifically virus scans or firewalls to include inadvertent collection of personal information through “network monitoring tools” or routine monitoring for “service quality or security.”
Attorney David Louie, representing Facebook, also asked legislators to tighten language to ensure that co-workers, and even employers, are not automatically prohibited from reaching out via social media to “friend” colleagues.
“We support the intent of the bill, it looks fine for most of it, but there is some overly broad language that we think creates a potential problem,” Louie said.
The American Civil Liberties Union of Hawaii testified that a growing number of employers are asking job applicants and employees to give them passwords to private social networking accounts.
“Social media platforms have this instant message feature, so if your employer has access to your social media account, it is tantamount to them reading your personal emails,” Mandy Finlay, advocacy coordinator for the ACLU, told legislators at the hearing Friday.
“Just as an employer should never be permitted to go to an employee’s house and look through her personal letters, diary and/or photographs, employers have no legitimate business interest in accessing an individual’s communication sent electronically.”
But the Chamber of Commerce, which represents 1,000 businesses, questioned the need for the bill in the first place.
“While we understand the reasoning behind the proposed bill, we have also seen instances where unnecessary laws create unintended consequences,” the chamber said in written testimony. “The chamber hasn’t seen any empirical evidence that private employers routinely request access to applicant and employee personal social media.”
Supporters of the bill include the High Tech Development Corp., the ILWU Local 142, UNITE HERE Local 5 and the LGBT Caucus of the Democratic Party of Hawaii.
The proposed legislation would not affect background checks on prospective employees. And employers would still be free to ask for passwords for work-related accounts and business devices.
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