"SNOPA" - Would you give your Facebook password to your boss?

We spent the last few days discussing when and why Facebook and email providers may disclose personal information about you to third parties. But what if the third party asks you to turn that information over yourself, and because of the authority they have over you, you feel obligated to comply?

Earlier this month, several Representatives, including our own Keith Ellison, re-introduced the “Social Networking Online Protection Act” (“SNOPA”– a truly great acronym!), which would prohibit employers from requesting or requiring that employees or job applicants provide them with a user name and password for any personal email or social networking account, and prohibit the employer from firing, disciplining, or discriminating against anyone who refuses to provide this information. The law would be enforced by the DOL, which could seek a $10K civil penalty and appropriate injunctive relieve in federal court (i.e. reinstatement, employment, payment of lost wages and benefits). The bill includes a similar restriction on colleges and universities, and K-12 institutions, but doesn't explain how this portion would be enforced.  A similar federal bill died an early death last year. But since then, California, Michigan, New Jersey, Delaware, Maryland and Illinois have passed laws that limit employers’ and/or universities’ ability to request access to social media accounts, and over a dozen more states are currently considering  similar legislation.

There are many reasons why an employer or school might want this information. In 2012, for example, NPR interviewed a corrections officer who was required to hand over his Facebook password so the prison officials could ensure he wasn't gang-affiliated. But there is plenty of information on the average person’s Facebook profile that employers clearly may not ask about with violating anti-discrimination laws (i.e. information about nationality, sexuality, religion, medical conditions, and pregnancy).

Discrimination concerns aside, are there any other existing legal protections against this type of request? Technically, a job applicant who provides personal information does it willingly. This consent to the intrusion (though obtained under some duress) would likely destroy any cause of action under either the 4th Amend. or the Invasion of Privacy torts.  The employer hasn’t spied on the applicant through the window of her home, she has handed him the keys to the front door. But it isn’t just that, she has handed the employer keys to all of her friends’homes. By accessing a job applicant’s account, an employer suddenly has access to the private accounts of the applicant’s friends. Even if those friends have rigorously curated their privacy settings and had chosen to “friend” only people they know and trust, their personal information is now in the hands of a stranger. Would a job applicant’s friend now have an intrusion upon seclusion tort claim against the applicant or the employer?

Unless we're prepared to abandon the privacy wall between our personal lives and professional lives, SNOPA seems like a common sense policy.