July 19, 2012 By Dylan Scott, Governing
After a three-month leave of absence in 2010, Robert Collins decided to return to work as a Maryland corrections officer. Collins had left under amiable terms (his mother had died), and he expected no surprises as he went through the recertification process for a position at the state prison in Jessup. But during an interview in December, an investigator asked a question that Collins hadn’t heard before: Do you have a social media account? Can we have your user name and password?
“You can’t be serious. You must be joking,” Collins recalls replying. The investigator wasn’t kidding. The implication of the conversation was that disclosing a Facebook account’s password was compulsory. The request was part of a new policy the Maryland Department of Public Safety and Corrections had adopted to filter out job candidates with gang affiliations or other unsavory personal pastimes. Collins acquiesced. He needed the job. But, he says, “I felt violated on so many levels.”
The feeling lingered. Within days, Collins contacted the American Civil Liberties Union and asked if they were aware of the practice. They weren’t. On Jan. 25, 2011, the ACLU sent a letter to Maryland Public Safety and Correctional Services Secretary Gary Maynard on Collins’ behalf, calling the social media password policy a “frightening and illegal invasion of privacy.” The letter -- and a public relations campaign by the ACLU -- made its mark. The department revised the policy, making it clear that handing over a password was voluntary.
The ACLU didn’t let the issue rest there. It pushed state legislators to take action. A year after the ACLU sent its letter to the corrections department, a coalition of Maryland legislators led by Del. Shawn Tarrant introduced a bill to prohibit employers, including public agencies, from requiring employees or job candidates to disclose their social media passwords. “Just because we have new bells and whistles,” Tarrant says, “that doesn’t mean that you have the right to invade my privacy.”
The bill passed in April, and Maryland Gov. Martin O’Malley promptly signed it into law. It was the first of its kind in the United States.
Until recently, such a statute might have seemed wholly unnecessary. But social media and the broader online realm present an unusual challenge for policymakers -- one that becomes more pressing with time.
Recent studies have found Americans spend 13 hours per week online, and more than 20 percent of that time is logged on social networks. As the Internet and social media become more and more integrated into people’s daily lives, legislators can no longer ignore the need for online policies and regulations. Yet it is largely uncharted territory for policymakers, one filled with unexpected and unique obstacles. “Who would have thought that social media would be an issue and we would have to protect citizens from violation?” says Illinois Rep. La Shawn Ford, who introduced a password protection bill in his state. “But we in government have to keep up with the changes in society.”
Right now, states and localities are ground zero for the policies and statutes that will govern more than 150 million Facebook and 100 million Twitter users in the United States. The U.S. Congress voted down one password protection proposal in March, although another has since been introduced. Meanwhile, in additon to the Maryland law, 11 other state legislatures have introduced bills during the 2012 session, according to the National Conference of State Legislatures. No federal statute for online bullying exists, but 46 states have passed laws that explicitly forbid bullying by any electronic means. There are no indications that Congress will address the issue of Facebook or Twitter profiles being a part of a person’s estate when he or she dies, but five states have already enacted laws that dictate what should happen, and two others proposed legislation this year.
That said, the intersection of policymaking and social media can be hazardous terrain. In the case of Maryland and Robert Collins, the state was nearly entangled in a costly lawsuit -- Collins would have sued if the state hadn’t revised its procedure. The Missouri Legislature was less fortunate. After lawmakers approved a bill last year that restricted interactions between teachers and students on social networks, the teachers union filed litigation against the state.
Other cases, particularly those that attempt to govern online speech, have attracted the attention of civil rights and First Amendment advocates who warn that states, in their effort to protect people from digital harassment, might come dangerously close to infringing on constitutionally protected expression. Elsewhere, the social media companies themselves are intervening, concerned that state laws could disrupt the user experience they’ve worked so hard to create for their customers.
A new Arizona law barring online harassment, approved by lawmakers in April, epitomizes one aspect of the tightrope state legislators are walking. The initial bill was intended to be an update of existing harassment laws, which hadn’t kept up with emerging technologies. “The way we communicate in 2012 is vastly different than the way we used to communicate,” says Arizona Rep. Ted Vogt.
But concerns about the new law’s implications for free speech led to rampant speculation in the blogosphere that the state could be subjected to a flood of lawsuits. Language that placed “annoying” or “offensive” behavior under the bill’s parameters drew scrutiny from First Amendment advocates. There was also a question of
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